In Conversation With: Graeme Orr

Graeme Orr is a Professor at the University of Queensland. His research interests are wide and varied, and I was lucky enough to have a short conversation with him about the recent Queensland local election. In particular, Graeme shared with me his views on the referendum and democratic process. I will be interested in hearing Graeme's perspective on the upcoming Federal Election, but that's for another day.

Prianka: For someone who has no idea how things work, can you explain briefly what the democratic process was like in the lead up to the election?


Graeme: It wasn’t run very well, whether by design or misadventure (or a bit of both). As you probably know better than me, many people were not aware that the referendum was on, and people were turning up to the polls surprised that they had to vote on something besides local government. This Bill, that is now law to amend Queensland’s Constitution was pushed through on the last sitting before Christmas. We heard nothing of it for a while afterwards, other than there was a suggestion that the government, to save money, wanted to hold the referendum on the same day as the local government polling day.

We then had four or five weeks’ notice when the Governor said that the referendum would be held. The people behind the referendum spent no public money educating, and we know that this is an absolute problem when it comes to deliberative democracy. This is especially in regards to referendums – for instance if you think about the Indigenous (so-called) recognition and local government referendums that were mooted, there has been a several year-long process of consultation and building up community information and potential support and arguments. In this case, there was none of that.

In this case, the only public monies that went into voter education was a 1000-word case for yes or no in letter boxes. Many people would’ve thrown it in the bin, many would have put it aside and lost it. In some cases, one person in a household would have seen it but not the rest. It’s not a bad idea, but it is a 100-year old idea in the law, that you spend some money for an official yes/no case which is in black and white. It’s fine, but you need a lot more, and we learned that seventeen years ago with the republic referendum, where they ran things like television and social media campaigns. Basically, we need an updated model about engaging people in open ways, and that’s particularly important when you’re changing fundamental legal institutions, like how long parliament runs.

You’ve done constitutional law, does Queensland have a constitution?


Prianka: I wish I had paid more attention in Constitutional Law, but yes I think so. There’s no bill of rights, so I’d hope that there’s a constitution


Graeme: Many people don’t know that Queensland has its own separate constitution to the national one, and very few people will know that Queensland’s constitution runs across many Constitution acts. Almost no people would know that the Queensland Constitution is flexible, meaning that we did not have to have a referendum to determine fixed terms – we could have just passed a Bill.

Why then did they include fixed terms with longer terms? A referendum is needed for longer terms, because in the 1920s the Upper House, which was at the time stacked with old white men, was abolished and the Labor Party entrenched three-year fixed terms explicitly, because that was supposed to be the main form of accountability and protection for not having any other checks and balances.

However, the government in this case decided to bundle together fixed terms, where they didn’t even need a referendum, and longer terms where they did. Why do you think they did this?


Prianka: For them – for job security and the security of political agenda?


Graeme: Precisely, these were bundled together for their sake. They wanted longer terms. They could have had fixed terms without a referendum, and they could have done this any time in the past. They deliberately (or cleverly) bundled two separate issues together, when they could easily have had two separate questions in the referendum, to minimise peoples’ choices. It’s a bit like Optus and Telstra, they bundle together packages to force you into things that you don’t really want. It’s a classic marketing tool, to bundle together related but distinct questions, to minimise choice in the assumption or hope that people will favour fixed terms and stability, with the risk of longer terms and less democracy and checks and balances.

There was polling that shows that 60-70% of Queenslanders wanted fixed terms, and 60-70% of Queenslanders wanted short terms. You can see why the referendum was so close. You can see why it just struck over the line, despite peoples’ good democratic instincts. People are not irrational. People who simply trust in the power above are in a minority.


Prianka: So am I benefiting at all from four-year terms?


Graeme: You’re not, or at least you’re certainly not guaranteed to. You’ve diluted yours and your children’s’ votes – this referendum has diluted our voting rights, and it’s the only mechanism formally and institutionally in our legal system that provides us with protection from the executive government. I mean, we’ve got an Ombudsman and Parliament, and we’ve got parliamentary committees. However, none of these things are locked in. The ability to vote regularly was the only thing we had, and people used that to get rid of the Bligh government because it had been there for too long and had lied about asset sales, and they used it to get ride of the Newman government because it was moving too fast and too soon, in ways that people thought were unfair.

We now all have to wait an extra year to get rid of a bad government. But more than that, we only have one vote very four years. One ballot, one Upper House ballet. We can’t elect minor parties effectively because the system is geared towards the two major parties.


Prianka: That was one of my other questions – what chance do The Greens or any other parties have of being properly represented?


Graeme: You can see why The Greens and the Katter Party were against the referendum; because they prefer the idea of more democracy and not less. Voting less is a bit like having fewer opinion polls. It means that we’re being consulted less, and it means that the executive can just go on and do their own thing. But, when you think about Queensland’s culture and history, you can see that we have a history of (usually) strong male premiers. Newman – strong choices, Peter Beattie – was all about him. These Premiers can rule on 40% or less of the vote because the voting system in the Lower House is geared towards the party which is the most popular, not the party that has 50% of the vote. Smaller parties, like The Greens, don’t get any say.

We really missed a big opportunity. If a small percentage of people had switched, we could have forced the government back to the drawing board as they desperately wanted those four year terms like the other States. Had the referendum not passed, they would have had to bargain and give something up. Perhaps an entrenched bill of rights, or an Upper House (preferably). Maybe a system of proportionate voting in the Lower House like they have in New Zealand, which is my preference. Any one of those things would at least provide some system of checks and balance.

Importantly, it was always wrong to say that having a fixed four-year term would bring Queensland in line with the other States, because all the other States have an Upper House. They all have some proportional voting, whereas Queensland now has a constitution which is identical to the Northern Territory’s, and we know how how that’s working out.

Unfortunately, it’s now entrenched forever.


Prianka: Do you think that the possibility of an Upper House is realistic or idealistic?


Graeme: It would take a major scandal, like a corruption scandal, to induce parties to proactively put an Upper House back in place. We only have to look to the United States, how volatile the election is currently. People are looking for alternatives out of the cosy two-party system. They want someone who pushes down the barriers – a major economic shift. But this sort of scandal is not something that you would wish for as means of re-introducing an Upper House.

Remember that there really was no money in the ‘no’ case for the referendum. The Greens shared a video of me explaining my position (see below) but this was not funded. On the other hand, people on the ‘yes’ case were funded. The government paid for flights for the Attorney General and the Shadow Attorney General. They had party advertising and how to vote cards as well. So for them to only get 53% of the votes is one of the worst results for a referendum that has had bipartisan approval.

For instance, you can go back to the Commonwealth referendum for indigenous affairs in 1967, where there was 90% approval. In 1970s there were three referenda which all got between 60-80% of approval. This referendum was actually a very bad result.

But, it is what it is. We are now left with fixed four-year terms, and hopefully we will have more responsive rather than less responsive government. 

Things to note:

If you are further interested, you can find out more at http://www.theguardian.com/australia-news/2016/mar/18/queensland-politicians-in-furious-agreement-on-fixed-terms-but-voters-beg-to-differ 

Embedded in the article is the video prezi Graeme made explaining his case, as well as a video from Mr Ian Walker in support of four-year fixed terms. 


The Inaugural Derek Fielding Memorial Lecture


On Tuesday 14th July, I had the pleasure of attending the Hon Michael Kirby's speech at the Inaugural Derek Fielding Memorial Lecture, along with JATL executive member Christine Chang. The lecture was on the subject of "Magna Carta, Bastille Day, North Korea and the Protection of Human Freedoms."

President Michael Cope of the Queensland Council for Civil Liberties introduced Kirby, at one point noting his twenty-three honorary degrees, which Kirby amusingly remarked was "Not enough!"

Kirby highlighted the importance of the fifteenth year of a century. Important dates in legal and political history have included such events as:

  • Battle of Waterloo in 1815, which marked the end of the French Revolution
  • Signing of the Magna Carta in 1215 by King John of England
  • Landing of Australian troops at Gallipoli in 1915, a tragic but pivotal point in Australian history

Kirby recounted his involvement in some significant cases relating to civil liberties, including Parker v DPP (1992) 28 NSWLR 282, in which Kirby took the opportunity to cement the common practice that where the judge is contemplating an increased sentence, the judge should indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal.

The Parker decision came years after Kirby had an experience where a judge failed to give the usual warning that they were considering a harsher sentence, and a client received gaol time where they had previously been sentenced to none.

Kirby also remarked upon the decision of Green v The Queen (1996), which established the controversial 'gay panic' defence for killing someone after an apparently unwanted, non-violent sexual approach. He reiterated the point made in his dissenting judgment in the case:

If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance, in a comparable situation to that described in the evidence in this case could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended.
— Justice Kirby, Green v The Queen (1996) 191 CLR 334

The Green decision is particularly important given that Queensland still retains the defence.

Kirby reflected frequently and positively on his time in the Council for Civil Liberties, but lamented that there were many times where the CCL was slow to act, or did not act at all. Such issues as the White Australia policy, gay rights, the treatment of Aboriginal and Torres Strait Islander Australians and women's issues were all neglected.

Kirby mused that in 30 years time, we may look back in shame at any number of issues which are currently being neglected by civil libertarians, and suggested that these might include:

  • Disproportionate incarceration of Aboriginal Australians
  • Terror laws which have been recently enacted (Justice Kirby highlighted the worrying similarities to the legal changes in Uruguay which eventually caused their democracy to crumble).
  • Bill of rights, or the lack thereof, in Australia.
  • The fact that Members of the Refugee Review Tribunal (RRT) have not been reappointed, which represents a worrying trend given the complex and critical nature of the work being done.
Justice Kirby with Ban Ki-moon, Secretary-General of the United Nations

Justice Kirby with Ban Ki-moon, Secretary-General of the United Nations

In a brief conclusion, which was condensed due to his impending flight back to Sydney, Kirby noted that the issue of the Democratic People's Republic of Korea (or, North Korea) was of considerable importance. He assured the audience that, although he could not speak much on the topic that night, a wealth of information on the topic is available on his website.

Kirby has been working with the UN Human Rights Council to address the alleged human rights violations in the Democratic People's Republic of Korea.

Darkness to Daylight Challenge Run 2015


Last week, JATL was pleased to be able to lend support the Darkness to Daylight challenge, which raised awareness and $35,000 in support of victims of domestic violence in Australia. The night began with a candlelight vigil, followed by the overnight 110km Night Run which represents the 110 lives lost each year due to domestic violence.[1] Some did the 110km individually, whilst others formed teams to run the course as a relay. 

In the morning, the Together Run had everyone run the final 10km together to represent all the organisations that are working to end domestic violence. More than 300 people participated in the run, and many volunteers, including some from JATL, were there to support them. The event was organised by Australia's CEO Challenge with the support of Minter Ellison.

Domestic violence affects people of all walks of life and is not confined to a particular demographic.[2] The Darkness to Daylight challenge is a way to make a difference to the statistic that two people die every week in Australia at the hands of a loved one.[3] 

I volunteered from 3.30am to support the participants during the last leg of the Night Run and for the Together Run. It was really inspirational to see the endurance of the runners, especially those who ran the entire 110km. JATL executive member Wendy Pei volunteered in the morning for the clean-up and handing out the medals. I was so impressed with everyone who participated in this fantastic display of solidarity and awareness for an important issue.

UQLS Running Club participants Amy, Will, Sarah and Hamish.

It was also great to see familiar faces from the UQ Law Society Running Club who did the Night Run as a relay. The participants included Samuel Irvine Casey, May Ann, Jane Hall, Claudia Barry, Gabbi Davis, Jasmine Zamprogno, Sarah Connolly, Matt Fox, Will Baxter, Hamish Swanson and Amy Bergman. Everyone remained enthusiastic throughout the night - even at 3.00am! Their efforts have helped to shine a light on domestic violence, as well as raising money to support primary prevention initiatives and community domestic violence services.


[1] Australia’s CEO Challenge, Darkness to Daylight Challenge Run 2015 <http://ceochallengeaustralia.org/event/darkness-to-daylight-challenge-run-2015/>.

[2] Women’s Legal Service, About Domestic Violence <https://www.wlsq.org.au/resources/about-domestic-violence/>.

[3] Australia’s CEO Challenge, above n 1.