Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Hansard source

I do not intend to detain the chamber for terribly long. There has been a lengthy debate on this bill, and it is unusual to make a contribution on the third reading, but it is important to make clear that, whilst the coalition has significant concerns about the way the government and the Greens have conducted this debate—grave concerns about the application of the gag and the guillotine, and concerns about some of the technical aspects of this bill which we have debated and sought to move amendments to—we nonetheless acknowledge, as I said way back in my contribution on the second reading and as Senator Joyce just emphasised, that there are genuine community concerns that surround the issue of coal seam gas development and large coalmining development, and what their impact may be on water resources. We understand the imperative to protect our water resources and we want to make sure that in the future they are appropriately protected and the right safeguards are in place.

That is why the coalition ultimately supports this bill and will ultimately support the passage of the third reading of this bill. In the future, in government—as is our declared policy—we will to try to streamline assessment and approval processes to ensure that we minimise or eliminate, ideally, the duplication of costs between the Commonwealth and the states when it comes to environmental assessments. But that will in no way undermine our commitment to ensuring that the water resources of Australia are properly protected when it comes to how mining and exploration activities are undertaken.

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, the opposition will move a second reading amendment 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 no case 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.