The Australia Together Podcast

Introduction from Bronwyn Kelly:

On 28 September 2023, representing Australian Community Futures Planning, I addressed the federal Parliamentary Joint Committee on Human Rights as a witness in its Inquiry into Australia’s Human Rights Framework. I made a case in support of a Human Rights Act but stated that the Constitution is a barrier to security of the human rights of Australians.

After my appearance at the Inquiry, Indigenous independent Senator Lidia Thorpe asked me the following two Questions on Notice:

(1) You say the AHRC [Australian Human Rights Commission] proposal does not go far enough and unless human rights are constitutionally enshrined abuse of human rights will continue and we will see government enabled climate change, new stolen generations, state sanctioned violence, homelessness, poverty, health issues, pollution, corporate exploitation, and war. We look around and see this all currently happening and worst of all for First Peoples on our own land. Can you confirm your submission that unless a Bill or Charter of rights is constitutionally enshrined, there is no domestic legal way to hold the executive government accountable for passing laws that abuse human rights beyond the government of the day choosing how they are held accountable for breaches through [sic.]?

(2) What is the biggest danger in pursuing the weaker AHRC proposal as opposed to the constitutional model?

In my appearance at the hearing I did indeed suggest that a Human Rights Act was a weaker proposal than constitutional enshrinement of rights, at least from the point of view that legislation can confer rights on Australians but unfortunately it won’t secure them. Without constitutional enshrinement of rights Australians will still be vulnerable to abuse or loss of their rights by executive government decisions when it is neither necessary nor just.

However, I didn’t suggest that the solution would be a bill or charter of rights in the Constitution. We need to do something new in the Constitution, but it isn’t a bill or charter. Quite a different form of constitutional enshrinement of human rights is required if we are to build a human rights framework that safely and equitably secures rights for Australians in democracy.

In my recent book, The People’s Constitution: the path to empowerment of Australians in a 21st century democracy, I have suggested that the necessary form of constitutional law on human rights is a National Agreement between all enfranchised Australians on Human Rights and Obligations. This is a different form of constitutional law to a charter or bill of rights.  

This is not something that was discussed in my appearance before the parliamentary committee. So in this and the next two episodes of the Australia Together Podcast I’m providing my answers to Senator Thorpe’s questions in full. They’re really great questions and the answers go to the heart of how we should understand: (a) the very limited form of democracy we have in Australia, (b) how that is impacting our human rights, and (c) what we can do to make the Constitution fit for a 21st century democracy – one where everyone has political equality and is secure in all the human rights they need. 

For a full transcript of Episodes 37, 38 and 39 on Insights into Human Rights and Democracy in Australia visit the ACFP website at https://www.austcfp.com.au/supporting-activities

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

On 28 September 2023, ACFP's Founder Bronwyn Kelly addressed the Joint Parliamentary Committee on Human Rights in their inquiry into Australia’s Human Rights Framework. She made a case in support of a Human Rights Act but stated that the Constitution is a barrier to security of the human rights of Australians.

​Dr Kelly testified that executive governments can - and they do - all too easily reduce or revoke human rights because rights are not enshrined in the Constitution. But with a process of nation-wide community engagement to build a new Constitution, Australians can finally secure the rights that have long been denied to them in Australian law. Read the full opening statement and the supporting material submitted by Bronwyn Kelly here.

The supporting material contains: (1) Five reasons why Australians must all have human rights in the Constitution; and (2) A seven-step program to safely enshrine the rights of Australians in a Constitution fit for a 21st century democracy.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 35 Bronwyn Kelly reads the final chapter of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy. She states that: Australia can establish a safe and prosperous future for all its peoples but only if it reconstitutes itself as an inclusive, full democracy – one in which the people have their rightful share of power and can establish a much better relationship of trust and productive collaboration with those they elect to represent them in parliament. The current Constitution cannot make that possible simply because it excludes the people from their essential share of power – the power of self-determination – and from the agency that can only be exercised if they and their will are fully and respectfully acknowledged as the source of the sovereignty.  

She elaborates on how a coherent statement about the sovereign will of the people can be set out in terms of trust that can be issued to parliaments. This statement can contain our national values, an agreement human rights and obligations, a national people’s voice and an Indigenous Voice. She also outlines how terms of trust in this form can assist Australians to transform their system of merely representative government into a system of truly responsible government.

Bronwyn concludes by showing how a people’s constitution will be an enormous benefit to both everyday Australians and those they elect, particularly if Australians accept the invitation in the Uluru Statement from the Heart. She says: If as a nation we wish to start again, and this time give ourselves the best chance that all our children and all those we love will flourish, there is no better time to accept the gracious invitation from First Nations to walk with them towards a better future. Our willing assent to a people’s constitution which enshrines our political equality by means of enshrining our values, rights, obligations and voices is the key to that better future. We are limited in taking up this invitation to empower all our selves only by the extent of our imagination. We are not limited by any lack of means, practical incapacity, or legal strictures. We are not even limited by political short-sightedness. That will always be present but it need not obscure the truth for us – the truth that our nation is what we make it.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 34 Bronwyn Kelly reads Chapter 9 Parts 1, 2, 3 and 4 of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy. She discusses the democratic processes by which Australians might alter their Constitution and examines potential obstructions to those processes. Bronwyn then suggests options for overcoming these obstructions. She also highlights the fact that time is running out for Australians to secure their rights and freedoms and to secure their future safety in the face of climate change and global conflict.

Relevance to the referendum on the Indigenous Voice: For those who are still considering whether they should vote Yes or No in the referendum on the Indigenous Voice to Parliament, this chapter of The People’s Constitution may provide some insight into why inclusive types of constitutional reform like the Indigenous Voice are so important for Australia’s ability to transition to an enabling form of democracy where everyone has political equality and a greater share of influence over the decisions that affect them. A Yes vote for a constitutionally enshrined Indigenous Voice is essential to a democracy of political equals. This will pertain regardless of whether the referendum passes next week.

This Chapter 9 shows why an enabling form of democracy is a must-have for all Australians, not just Indigenes. It also shows how we can make that necessary transition by establishing an orderly, nation-wide collaborative process for development of a people’s constitution.

A Yes vote next week will make the transition to an enabling form of democracy for all easier and quicker. A No vote will slow it down but it will not remove the need for the transition. The good news is that regardless of the result at the referendum, Australians can still rescue their democracy if they collaborate to build a people’s constitution.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 33 Bronwyn Kelly reads Chapter 8 Parts 5, 6 and 7 of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy.

In Part 5 she discusses the last of four essential changes to the Constitution - the need to eliminate the clauses that enable racism. She recounts how the group most affected by these clauses - Aboriginal and Torres Strait Islander peoples - has encountered difficulties in developing ways to safely remove them without increasing the chance of adverse discrimination. Bronwyn then suggests that safe removal of the races clauses would be possible if all Australians were granted the right of self-determination in the Constitution.

In Part 6 Bronwyn discusses how it is fundamental to Australia’s future as a cohesive, fair and prosperous society that the racist provisions in the Constitution should be repealed. But to ensure a safe repeal, Australian parliaments and executive governments will need to release some part of their grip on the paternalistic power they have enjoyed and, sadly, often misused under the current Constitution. The part of their grip on power that needs to be released is the part that prevents Australians from exploring what they can do for their communities with self-determination. Bronwyn argues that: "Self-determination may be viewed in an entirely positive light as a straightforward reform that has more capacity than any other to enhance the effective functioning of the state. As such, it is time that politicians and Australians both began exploring what it can do for them."

She concludes in Part 6 that self-determination is the missing ingredient in the national project. It is the right by which a nation’s people may express their sovereign will. Smart governments will enhance our quality of life and increase the stability of the nation if they seek out the people’s will and adapt their sphere of power to ensure it is realised.

In Part 7 Bronwyn explains that the objective of the book has been to create a space where all those empowered under the Constitution are invested with a reasonable share of power – a share sufficient to ensure that the nation’s project for the future, whatever it is, can be advanced in the interests of all, not just some, and that each empowered entity can play their full and, more importantly, their rightful part in democracy without abusing the power vested in them or the rights of another empowered party.

To implement these reforms we need a broadened structure for the Constitution to include: (1) a Statement of Australian Values; (2) a National Agreement on Human Rights and Obligations; (3) a National Peoples Voice alongside an Indigenous Voice; and (4) four other smaller consequential amendments to: (a) limit political donations, (b) reduce the powers of the governor-general, (c) reduce the power of the prime minister on war, and (d) eliminate clauses permitting racism. All of this can be achieved without destabilising the state.

Bronwyn explains how: "The proposals take nothing from the powers of the elected Commonwealth parliaments, executive governments or the states. They simply offer the full share of a new type of power to the people – a power that is not being exercised by anyone at the moment and which, in any case, no-one is lawfully authorised to exercise. In this proposed new constitutional arrangement the people are accorded the power to voice their aspirations – the power to say what they want to become as a nation. They can fill a gap in power with something that is absolutely necessary to democracy – the rightful power of the people to express their sovereign will. … So far from being a threat to elected parties, a people’s constitution would enhance and properly legitimise the power of all parties to that old Constitution, compared to the power they can legitimately exercise now."

Bronwyn finalises Chapter 8 by saying that the challenge of transitioning to a people’s constitution is not at all insurmountable. With a degree of good will and genuine commitment to community engagement it can be managed with decency and even create great excitement about the nation we can become.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 32 Bronwyn Kelly reads Chapter 8 Part 4 of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy. She discusses the third of four essential changes to the Constitution - the need to limit the powers of the prime minister in relation to decisions on war. The suggestion is that this power should be shared with the people through the parliaments they elect. There should be a clear demonstration that any decision to engage in war is in the national interest as defined by the people in their Constitution.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 31 Bronwyn Kelly reads Chapter 8 Parts 1, 2 and 3 of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy.

In Part 1 she points out how most suggestions about reform of our governance focus on mechanical alterations of the existing system. However, these don’t offer much, if anything, in terms of the possibility of political inclusion. Nevertheless, there are some mechanical reforms that are essential.

In Part 2 Bronwyn discusses the first of these essentials - the need to prohibit corporate and other organisational donations to political entities.

In Part 3 she talks of the necessity of limiting the powers of the governor-general.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 30 Bronwyn Kelly reads Chapter 7 Parts 7, 8 and 9 of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy.

In Part 7 she states that the purpose of enshrining an Australian people’s national voice in the constitution is to enable Australians to develop terms of trust with the parliaments they elect. She suggests there is likely to be no other way to encourage a parliament to grant an appropriate share of power to the people in their own Constitution.

Bronwyn also sets out how these terms of trust can enable a new arrangement of shared power, with the power to specify the national or sovereign will being accorded to the people and the power to make laws in accordance with that will being retained by the elected parliaments. She sets out how this system of separating two types of power can help governments to make more balanced policy decisions and parliaments to take the interests of future generations into account.

Bronwyn then describes the form these new terms of trust might take and concludes that this will result in an arrangement of shared power which does not undermine the system of representative government. Instead it should enhance the capacity for responsible behaviour in that system.

To facilitate this new arrangement of participation in democracy Bronwyn suggests that an independent centre of excellence in community engagement, social research and integrated planning should be created to support Australians in their right to build their own national people’s voice. She finishes by suggesting that the benefits of this wider spread of power include the coexistence of diverse voices, an improved chance of responsibly exercising rights to self-determination in political equality, and the chance to speed up transition to a sustainable future without increasing political or economic inequality.

In Part 8 Bronwyn offers a starting draft of an enshrined constitutional process for expression of the national people’s voice. The draft is intended for use in community engagement.

In the final part of Chapter 7, Part 9, Bronwyn talks about how other amendments to the Constitution will be necessary if we are to reduce the possibility of abuse of power by governments.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 29 Bronwyn Kelly reads Chapter 7 Parts 5 and 6 of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy. In Part 5 Bronwyn refers to the fact that there is a problem of injustice in the Australian state arising from the brutal dispossession of First Nations. In the Uluru Statement from the Heart, however, Australians have been offered the chance to restore justice for Aboriginal and Torres Strait Islanders. In this regard, First Nations have proposed a Makarrata - a process for coming together after a struggle. But there is a problem for successful development of a just reconciliation in that the Australian State has proven itself to be untrustworthy as a treaty negotiator. Additionally, Australia’s Constitution and legal systems are not structured to countenance the concept of a multiplicity of sovereignties and self-determination for all its populace. Bronwyn argues that until the current exclusive system of power in Australia is replaced with an inclusive system in which everyone can have a voice, a just treaty with First Nations is not likely to be viable. A people’s national voice must be enshrined as the political right of all Australians and it must coexist with an enshrined Indigenous Voice.

In Part 6 Bronwyn discusses how the failure of our political systems in Australia has brought us to the brink of a climate catastrophe. She suggests that the Australian economy needs to be restructured to ensure future generations have a decent standard of living but that this can only occur if Australians are given a space to specify how the economy should be restructured according to their will. For this, we need democratic arrangements which enable us to assemble our national voice. We will need to create an orderly framework in which we can integrate the strategies most likely to push us towards a sustainable future before we are overwhelmed by climate change. We need National Integrated Planning and Reporting and enshrinement in the Constitution of the right to participate in this process.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com

In Episode 28 Bronwyn Kelly reads Chapter 7 Part 4 of her book, The People's Constitution: the path to empowerment of Australians in a 21st century democracy. In this section she sets out how it has been necessary to adapt and expand the process of Integrated Planning and Reporting already legislated for local councils so that it can function at the national level and can be used efficiently by any Australian wishing to participate in National Integrated Planning and Reporting (National IP&R).

If National IP&R is to have sufficient capacity to enable diverse Australians to come together and build a coherent people’s voice - a voice which expresses their aspirations for the future and is readily intelligible to parliamentarians - then two extra features need to be added to the model of IP&R used at the local level: (1) a capacity to protect and promote the extraordinary diversity of Australians; and (2) a capacity to build plans for a national economy that is inclusive and supports the aspirations, wellbeing and security of all - in other words, a human-centred economy.

Bronwyn explains how the adapted process gives diverse Australians, for the first time, an efficient means of injecting themselves into an orderly decision process on the overarching purpose of their economy and how this gives parliaments and governments the knowledge they need to deliver a fair and viable economy. She also explains how the process is being trialed and tested at Australian Community Futures Planning using a prototype integrated plan called Australia Together. This prototype has a structure that enables efficient policy selection by Australians. It enables them to set the national long term agenda, free from short term politics.

Bronwyn finalises the section by suggesting that the national people’s voice or, more accurately, the process by which it may be legitimately expressed should be enshrined in the Constitution as a right of the people – a right which is as important as any other civil and political right – so that when elected members of parliaments swear to uphold the Constitution they can no longer be mistaken about the full import of their oath and the nature of their obligations under it.

Were Australians to enshrine a right to express their national people’s voice, they would be the first nation in the world with such a right and with an orderly means of determining their future they wish to build and share together.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit bronwynkelly.substack.com