Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Hansard source

I rise to speak on the Constitution Alteration (Local Government) 2013, which puts forward an amendment to our Constitution to the people for their consideration, and to support the amendment put moved by the opposition. It is important to note that the debate in this chamber is not necessarily a debate regarding the merits of the proposal itself—although it may well be. This bill only puts forward a question that will be determined by the Australian people.

I will say at the outset that my comments are predominantly focused on the unprecedented funding announcement by the Labor government last Monday morning. Minister Albanese's announcement of $10 million for the 'yes' campaign, yet only $500,000 for the 'no' campaign, represents a new low in Labor's century-long war against our Constitution.

As I have stated in this chamber on numerous occasions, the coalition position is that we will not oppose the legislation that allows the referendum to be put before the Australian people. While we support the ability of the Commonwealth to make payments to local government, this referendum should not be proceeding at this time, as the conditions laid down for it by the government's own advisors have not been met. This critical issue, however, will not distract us from the task of ensuring that 14 September is a referendum on this government—this Labor-Greens-Independents alliance—and the chaos they have brought to our polity.

In that context, the history of this particular proposal is worth recounting. It has been proposed twice by the Labor Party—in 1974 and in 1988. It has been rejected twice by the people—in 1988, by the largest majority for a no vote in referendum history. This proposal is part of the price paid to the Greens, and the so-called 'Independent' members of the House of Representatives, in order for Labor to gain their support to form government. However, it also follows the work of the panel led by the Hon. Jim Spigelman. But, as has been the case with panels considering specific proposals for constitutional amendment, often only advocates of an issue are appointed—so, by its nature, it is focused on only one side of the argument. The issue was also subsequently considered by a joint committee of this parliament at the beginning of this year. Both specifically considered the similar proposals that were rejected by the people in 1974 and 1988.

When one reads that background information, the chaos of this government's approach is immediately apparent—because, while the government and the Greens attempt to hide behind these reports, there are some profound differences between what was recommended and what has occurred. First, and most importantly, the very amendment proposed in this bill, and the very words the Labor Party propose to insert in our Constitution, are not the same words as considered in both those reports. This proposed constitutional amendment is different; and while, in the chaos of this government, such a small difference may not mean much, such a difference in words can be significant. In a Constitution, the fine print matters. This reflects the rushed nature of the government's handling of this issue. This proposed change has not been subjected to detailed examination. There remain genuine questions regarding the need for the amendment, given the provisions of section 96 of the Constitution, which remain unchallenged. There are also questions about the potential impact of these new words, specifically the potential interaction of this new power with section 109 of the Constitution, especially as, following the Williams case, appropriations now need a statutory basis. Furthermore, the government's timetable does not meet that outlined in the Spigelman report or that outlined by the Australian Electoral Commission. The Spigelman report outlined that the support of the states was a necessary condition—again, something the ALP have never seriously attempted and that clearly is not the case now.

This is where I turn to the funding announcement last week. In an unprecedented announcement, the government announced $10 million of funding for the yes campaign, yet only $500,000 for the no case. Let us pause for a moment to consider that—a 20 to one advantage to one side of this debate. This is nothing less than an attempt to rig the referendum. It is the financial equivalent of stuffing the ballot box. The ALP and the Greens act as if the budget is some sort of union slush fund, deeming the taxpayers' purse as a source of revenue for their own campaigns. This announcement followed the debate that occurred in this place during budget week on the Referendum (Machinery Provisions) Amendment Bill 2013. In that debate, representing the opposition, I questioned the minister, at the time Senator Jacinta Collins, specifically about the funding for campaigns and the so-called education program. No indication was provided that only one side of the campaign would be funded. Yet the government and their Greens allies saw fit to suspend the provisions of the referendum act in order to allow abuse of the process in a manner never before experienced in more than a century of referenda. These provisions are decades old and were put in place in order to ensure basic fairness in the referendum process. In my lifetime they have only been suspended once, in 1999, and they were suspended specifically to allow equal funding for yes and no campaigns. Imagine the outrage if John Howard had funded the no campaign differently to the yes campaign.

I note that some of the advocates for this bill and proposal in this chamber have tried to construct a historical basis for this outrageous decision. Senator Milne referred to the 1999 referendum. But the suspension of the ban on public funds was undertaken with agreement across the parliament to ensure funding for both sides of the argument. Senator Milne also mentioned the intervention of the High Court in the 1988 referendum. But that was because the ALP government was breaking the law! Following the suspension of this longstanding rule by the ALP and the Greens, I questioned the department and the minister in estimates hearings. This time Senator Lundy was representing the government, and again the opposition was misled. Senator Lundy, representing the government, said:

Perhaps I can offer you an assurance the government will be doing everything to make sure it is a fair process.

She also said:

It is certainly our intention to have a fair process. … we will do what we can and make it as fair a process as possible.

So there we have it—a pledge for fairness. Then we had the announcement last week. Let there be no claim that this is all a subsequent decision that was taken since the estimates hearings, because earlier in the same hearing it was made clear that these matters were still under consideration. At no point before the vote in the House of Representatives was the government's intention to rort the process outlined or hinted at. To rely on votes in the House for the first time ever, without outlining the impact of members' votes on campaign funding, is dishonesty of the highest order.

Yet, as insidious as the assault on democracy entailed in the rorted funding decision is the treatment of the Senate by this announcement. Minister Albanese states in his media release:

The amount of funding to be provided for each case will reflect the proportion of Members that voted for and against the Constitution Alteration (Local Government) Amendment Bill 2013.

…   …   …

The two Members who voted against the bill will be asked to determine the distribution of this funding.

This represents as serious an assault on the Senate as I can recall. I cannot think of the debates, deliberations and votes of one house of parliament being treated so contemptuously. Senators in this place should hang their heads in shame if they support the government only considering the decisions of members of the House of Representatives. Unlike many, indeed most, other parliaments, the two houses of the Commonwealth parliament are coequal in all respects other than the specified instances regarding the initiation and amendment of money, taxation and appropriation bills. The Constitution itself reinforces this in section 53:

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Section 128 of the Constitution goes to extraordinary lengths to describe the process in terms in which both houses can initiate and indeed put a referendum to the people. Despite the system of responsible government that the drafters established, that they left open the possibility of one chamber initiating a constitutional amendment is itself a sign of the trouble they went to in order to ensure equality of the two houses.

For the first time ever when it comes to a proposal to amend the constitution, Labor are attempting to undermine this principle. But principle is of no concern to this government. In a mere press release, the ALP have undermined longstanding constitutional arrangements. Anyone in this place who takes their role as a senator seriously must condemn this. To grant the vote and deliberations of one chamber a funding authority yet deny that same consideration to the other and to then grant the power to disburse that funding to members of one chamber and deny it to the other represents a grave assault on this Senate.

But this is just another step in Labor's century-long war on our constitution. Undermining our constitution has always been Labor's objective. As they have failed to convince the people again and again at referenda, Labor now attempts to rig the process—to fix the outcome—as if it is a dodgy union ballot. Labor's constitutional history is a litany of attacks on the Senate and our federal arrangements. A little history is important here, and it is a secret history the ALP does not want you to know. I can guarantee it will not make it into the ALP's national curriculum, as it is a history the ALP wants to hide. They are secretly ashamed of it, because the truth is that Labor had no hand in the formation of our nation. Labor had no hand in Federation, other than an attempted spoiling role. The labour leagues and the labour parties opposed federation. In the words of Stuart McIntyre, referring to the efforts of Henry Parkes in the early 1890s, following the 1891 convention:

In its political infancy the labour movement had in effect vetoed federation.

McIntyre also wrote, as the process of federation moved forward despite the efforts of the labour movement, leagues and parties:

The pro federal alliance of leading politicians, liberal and conservative, protectionist and free-trade, deprived New South Wales Labor of its power of veto and threatened to marginalise the smaller labour parties elsewhere.

When it came to elections for the later constitutional conventions, Labor's opposition to federation was reflected in their electoral failure.

In New South Wales, Labor ran candidates for ten seats; not one was elected. In South Australia Labor accepted four positions on a joint ticket led by Kingston; all four failed. Only in Victoria was there a successful labour candidate, a member of the joint ticket of the Ageone out of 50 delegates; completely irrelevant to federation. Following the conventions, Labor's true colours were shown at the subsequent referenda in 1898. That constitution was put to the people in New South Wales, South Australia, Tasmania and Victoria in June 1898. The Labor Party campaigned for a no vote in New South Wales, South Australia and Victoria, and its allies did so in Tasmania. Despite Labor's opposition, this great project succeeded.

The federation project and our constitution was a project of liberals—some radical, some more conservative, some protectionist, some free-trading. But to all, the caucus and pledge that are so integral to the ALP then and now were utterly anathema.

I am constantly amazed by the attitudes of senators and members of other parties who attack those of my colleagues who dare to express a view different to their own party. Still, today, more than a century on from Federation, the drones of the ALP cannot cope with people expressing a view contrary to their pledge which places obedience above conscience.

The ALP could never accept that Deakin, Inglis Clark and Griffith would place checks upon the power of your new caucus and the mindless pledge you instituted. The pledge is a cowardly device, used as an excuse to absolve individuals of responsibility for the votes they cast in this place. Our refusal to have one is a difference that we are proud of. That we will never have a pledge is a difference we will always promote.

Even more objectionable to Labor was that the checks of a second chamber of parliament, a written constitution and federation were all endorsed by the people, and have been at every opportunity since. As Federation happened despite the Labor Party, it has long been hostile to our constitution.

Since then, the ALP has sought to attack the constitution at referendum after referendum, their last success being in 1946 with support from all levels of government across the country. Most failed referenda have been proposed by the ALP—overwhelmingly focused on centralising power and increasing the role of Canberra; often hidden behind the veils of national development or economic control.

Labor's century-long war on our constitution finds its modern expression today through this biased funding of the referendum campaign and the rigging of debate, the attempted stacking of a referendum. The ALP has no defence for this, merely excuses. The ALP has argued that public opinion should be a guide, but how do they determine this? That is the very purpose of a referendum. If we are to use polls, then why not use polls for public funding of elections? That would be patently absurd. Yet this is no barrier to the government when it comes to this referendum—if they cannot win fairly, they will seek to stack the process in their favour. We should remember it was Queensland ALP who first put in place the Australian gerrymander. And now they are trying to rig this process as well.

The ALP has long been frustrated by its extraordinary lack of success in amending the constitution. Time after time, they propose change and the people reject it. Then they blame the people. It always frustrates the hubristic left that the people have the final say. So now the ALP attempts referendum rigging.

From left and Labor-aligned academics, historians and lawyers, we hear terms such as horse-and-buggy constitution, as if something lacked legitimacy, purpose or practicality because of its age. This illustrates the hubris of the left, as if they somehow know better than the people, as they have expressed time and again through referenda. I will take my horse-and-buggy constitution, one of the oldest democratic constitutions in the world, against that phenomenon of the 20th century any day—the constitution of the sectional interest, the mob or the rifle.

Let me finish with a warning based on the history of referenda, for both the government and their Greens cousins. I know some of my colleagues are genuine proponents of this proposal and wish to see a fair process. But specifically regarding the funding issue and the announcement by Labor, I offer this specific warning: this sets a precedent that may not always favour your views. More generally, bipartisanship is a necessary condition for success in a referendum but it is not a guarantee. History is littered with examples of high hopes by governments—particularly ALP governments—as bills pass this place, only to be dashed on the rocks of the people actually casting ballots in secret.

On the same day in 1967 that 90 per cent of people voted for the referendum deleting section 127 of the Constitution and amending the race power, a bipartisan-supported referendum proposing the removal of the constitutional nexus between the House and the Senate was comprehensively defeated, with only 40 per cent support. More than half of the people who voted yes to one question also voted no to the other on the same day, despite them both having bipartisan support.

In 1977, on the day of successful referenda regarding casual vacancies in this place and the retirement of judges, the proposal for simultaneous elections for the House of Representatives and Senate failed. In both of these cases, the 'no' case was led by a handful of senators. In the case of 1967, I particularly note the efforts of several Democratic Labor Party senators who joined with several coalition senators in opposing that attack upon the Senate and who all won the day.

The Australian people take the notion of a referendum very seriously. To my mind, one of the greatest legacies of the drafters is that they prevented politicians from changing the Constitution. As it can only be altered with the direct consent of the people, it reflects their popular sovereignty. Despite Labor's attempts to rig this process through the most outrageous attack on the fairness of the referendum process itself, the final decision on this issue will be made by the people. The coalition does not oppose the people voting at referendum, but the process should reflect a fair debate.