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Wednesday, 19 June 2013
Page: 3357


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (11:31): This is a bill which comes before the parliament in order to observe the procedure prescribed by section 128 of the Constitution to enable a question to be put to the people at a referendum for an amendment to the Constitution. Section 128, as you know Mr Acting Deputy President, provides that the Constitution may only be amended at a referendum after a bill has passed through both chambers of the parliament and the question is put not less than two and not more than six months after the passage of the referendum bill through the parliament.

In this particular case, the proposal is to amend section 96 of the Constitution, that is, the provision which provides for the Commonwealth to make payments to the states on such terms and conditions as it sees fit. The proposal is to include in the words of section 96 a reference to local government. The purpose is to put beyond legal doubt the validity of a number of schemes for the making of payments to local government, which governments of both Labor and coalition persuasion have engaged in for some years now.

For example, to illustrate the point, I think of the Roads to Recovery program—a very popular program—which was pioneered by my colleague Senator Ian Macdonald when he was the Minister for Local Government in the Howard government. Payments under the Roads to Recovery program, which are used by local authorities to upgrade and repair roads within their jurisdictions, come directly from the executive. They are, of course, subject to the annual appropriation bills but are not otherwise specifically legislated for.

That was thought to be a constitutionally valid way for the Commonwealth to make payments, because although section 96 does not refer to payments to local government, it had until recently been thought that section 61 of the Constitution, which conferred the executive power of the Commonwealth on the Governor-General and made it exercisable by ministers, together with section 83 of the Constitution, which provides for the appropriation of Commonwealth moneys, were a sufficient footing for the making of payments by the Commonwealth government without specific legislative provision. That had been the orthodox constitutional provision.

However, that orthodox constitutional position was questioned in two recent decisions of the High Court—the Pape case and more recently, last year, the Williams case. The Williams case was not in fact about payments to local government. Nevertheless, it raised this broad question. It is a very fundamental constitutional question: may the executive power of the Commonwealth be used to make payments to entities, whether government entities or nongovernmental entities as was the case in the Williams case, other than the states without specific legislative provision? The language of the judges in the Williams case has been interpreted, I think correctly, to mean that specific legislative provision is necessary to validate payments by the Commonwealth to government entities other than the states—the states are already catered for by section 96 in its existing form—or nongovernmental entities.

One only has to state that proposition to appreciate the great significance, particularly of the Williams case, otherwise known as the 'school chaplains case', for the way in which Commonwealth funding operates. It seems that the Commonwealth may only make payments either to the states under section 96 or to entities other than the states for which there is specific legislative provision which falls within a section 51 head of power, but may not do so by decision of the executive government.

When the Williams case was delivered by the High Court and the significance of it was appreciated, the government rushed through the parliament with the support of the opposition—it was about this time last year, in the last sitting fortnight before the winter recess—a measure that was designed to try and fix up the problem. It was called the Financial Framework Legislation Amendment Bill No. 3. The finance minister, Senator Wong, who introduced the bill, said in her speech to the chamber on 27 June last year that the bill would 'ensure that the government can maintain funding for community programs'. She went on to say that the bill 'has been designed to address the new requirement for specific legislative approval of spending in programs identified by the High Court'.

Although the opposition supported the Financial Framework Legislation Amendment Bill No. 3 because we did want to see the very large range of program payments validated—there were some hundreds in the schedules to that bill—I expressed the view at the time that, given the language that the High Court used in the Williams case, that bill would not satisfy the High Court's requirements, and that it would be struck down. The view that I then expressed, which the government did not at the time accept, has since been endorsed by a number of constitutional scholars, including Professor Anne Twomey and Professor George Williams. Indeed, when I gave a paper on the school chaplains case in February of this year to the Gilbert + Tobin constitutional law conference, the annual conference at which all the constitutional lawyers in the country gather to discuss the constitutional issues of the previous year, I could not find a single scholar or judge attending that conference who disagreed with the view I had expressed, and expressed in the paper I gave, that the government's legislative makeover of June next year would not stand scrutiny before the High Court.

The government, eventually, seems to have arrived at the same view, hence the proposal to put beyond constitutional doubt, at least, payments to local government by including a reference to local government in section 96 of the Constitution. That is why this bill is before the parliament, and it is why a referendum is being proposed. It is no secret that this is an issue which has caused a lot of controversy inside the coalition. There are some who take the view—my distinguished colleague Senator Dean Smith, who I see sitting here, is one of them—that for section 96 to be amended explicitly to provide for payments directly from the Commonwealth to local government would in an important way subvert the role of the states. I hope I do not oversimplify, but I understand that is the gravamen of the complaint. There are many people in the Liberal Party who are of that view. There are some constitutional scholars—I mentioned Professor Anne Twomey before, the professor of constitutional law at the University of Sydney—who give considerable credence to that view. There are others who do not.

The position the opposition has therefore adopted is to allow these referendum bills through the parliament in order to satisfy the requirements for an amendment to the Constitution being proposed at referendum—in other words, to satisfy the requirements of section 128—and allow the matter to be put to the people. That is the position we adopted in the House of Representatives and it is the position we adopt in this chamber. But there will be some of my colleagues—it is one of the things the Liberal Party is most proud of—who will take a different position and vote a different way. It is one of the glories of the Liberal Party that we accommodate, without difficulty, the existence within our party of different views. But, nevertheless, this legislation will be passed through the chamber.

However, we do this to facilitate the public consideration of this referendum question, and it is necessarily implicit in that that the yes case should be heard and that the no case should be heard. It has always been the constitutional practice in Australia for as long as I can determine that, when a referendum to amend the Constitution is put—and there have only been 47 in the history of the Commonwealth, and only seven of them have ever succeeded—the yes case should be argued and funded and the no case should be able to be argued and funded, because, to put a proposition that a three-year-old child could understand, there are two sides to every story. There are two sides to this argument: the yes argument and the no argument. It has never been the case that the funding of the yes case and the no case should be in different proportions.

Yet the day before yesterday, on Monday—shockingly—the minister for local government, Mr Albanese, who has the carriage of this matter, announced that the Commonwealth would fund the yes case to the tune of $10 million but would fund the no case to the tune of $500,000—so that 20 times more would be spent on the yes case than on the no case. That is an astounding decision by this government, and it is utterly to be condemned for two very important reasons. First of all, it is extremely dishonest. There have been, going back some months now, discussions and exchanges between the Prime Minister's office and the opposition leader's office in relation to this referendum question, and those discussions have always been on the footing that when the referendum question were put, the yes case and that no case would be equally funded. The coalition allowed the passage of this bill through the House of Representatives recently on the explicit understanding that the yes case and the no case would be equally funded. That understanding was vacated—it was betrayed—by Mr Albanese in his announcement on Monday. We have all been in politics for a long time, Mr Acting Deputy President—and not many things shock me, but I was actually shocked at the boldness of the breach of good faith shown by the government on this occasion. The matter was explored in senate estimates within the last fortnight, particularly by my colleague, Senator Scott Ryan, and no indication came from the government to suggest otherwise than that the yes case and the no case would be equally funded. This has been a cynical, cold-blooded act of political dishonesty, the like of which it is hard to find a comparison with.

There is a second important reason quite apart from the dishonesty of the government in relation to this matter. It is that it is a violation of constitutional practice. The Constitution does not actually say that there should be public funding of a yes case and a no case, but that has always been the constitutional practice. In 1999, when the Howard government facilitated not a referendum to amend the Constitution but a plebiscite—on the issue of whether or not Australia should retain its form of government as a constitutional monarchy or move to become a republic—the then Prime Minister Mr Howard, although famously an avowed supporter of the constitutional status quo, had no hesitation in ensuring that the yes case, which his government was opposed to, and the no case, which he supported, were equally funded. More importantly—because the meagre justification has been put forward by Mr Albanese that the no case should only get one-twentieth of the funding of the yes case because only two members of the House of Representatives voted no and the rest either abstained or voted yes—the meagre justification that there should be some relativity between the funding of the yes case and the no case to reflect the political complexion on the issue of the House of Representatives is wrong too, not only because the opposition were, in effect, tricked into voting as they did because of the false assurances that the no case would be funded equally with the yes case but also—as I said before was the case with the republican plebiscite in 1999—because there is a much more direct comparison and that is the 1977 referendum on simultaneous elections for the Senate and the House of Representatives.

That was a referendum proposed by the Fraser government. It was supported by the opposition. It passed through the House of Representatives, I think, unanimously. When it came to the Senate, a small number of backbench Liberal senators dissented, and it passed through the Senate with the support of the government—net the few dissentient Liberal backbench senators—and of the opposition. The referendum was put to the people on 21 May 1977, after a campaign in which the dissentient senators were funded to argue the no case with an amount equal to that which the government and opposition jointly were funded to promote the yes case. Do you know what happened, Mr Acting Deputy President? The no case won. The no case won, notwithstanding that the government and the opposition were of a common mind, because the small minority of senators were able to persuade the Australian people it was a bad idea. So the idea that you fund the cases in relativity to the voting patterns in the parliament is a constitutional nonsense.

Therefore, I move:

At the end of the motion, add “but that further consideration of the bill be made an order of the day for the first sitting day after the Government puts into place financial arrangements to provide for equal funding for both the ‘yes’ and the ‘no’ cases, to ensure that the Australian community is properly informed about the arguments for and against the proposed change to the Constitution.”

That is what the government assured us it would do, and it lied about it, and that is what constitutional practice in this country has uniformly prescribed.