Constitution

So much for the “Freedom Commissioner”

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Less than three years after the Coalition government appointed Tim Wilson as the “Freedom Commissioner“, Attorney-General George Brandis has now appointed someone from an organisation which has repeatedly been on the wrong side of debates on freedoms, and public policy more generally.

This is just some of what the Public Interest Advocacy Centre – led by the new Human Rights Commissioner Edward Santow – has said in recent years:

Freedom of speech:

PIAC has welcomed the Federal Government’s decision not to proceed with proposed changes to section 18C of the Racial Discrimination Act…

‘Freedom of speech is a crucial human right but so too is the right not to be vilified on the basis of your race or ethnicity. Serious race-based insult, offence and humiliation can be deeply wounding and threatens important aspects of Australia’s liberal democracy,’ said Edward Santow, PIAC’s CEO.

Constitutional recognition of Aboriginal and Torres Strait Islanders:

PIAC generally supports the proposal for a statement of values or recognition, which appropriately recognises Aboriginal and Torres Strait Islander people in the Constitution… PIAC submits that constitutional protection is imperative to protect the rights of Aboriginal and Torres Strait Islander Australians against racial discrimination.

Freedom of religion:

We oppose, in particular, the granting of blanket exemptions to churches and religious organisations from anti-discrimination laws.

Suing Coles for its “discriminatory” website:

“Ms Mesnage relies on a screen-reader to use the internet. Like many people who are blind or have a vision impairment, she has had ongoing problems using the Coles website to do her shopping since 2008,” PIAC CEO, Edward Santow said.

Pro Bono Australia News reported in October 2014 that after negotiations with Coles failed to bring about a solution, Mesnage brought legal proceedings against the supermarket chain under the Disability Discrimination Act 1992.

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Fixing the federation: sharing income tax with the states

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Australia’s federation is broken. Power has been excessively centralised. States cannot fund their services. And the blame game between the states and the Commonwealth is never ending.

In very exciting news, Prime Minister Malcolm Turnbull has confirmed that the federal government will be pursuing a policy of sharing income tax revenue with the states:

Under existing laws the Federal Government is the sole recipient of income tax. The Prime Minister wants to reach agreement with the states to lower the percentage of tax collected federally, allowing the states to collect a portion of income tax funds directly.

“We would withdraw from a certain amount of income tax that would be available to the states and we would agree that that would be the maximum they would levy for a period,” he said.

Mr Turnbull went on to acknowledge he would not be able to control whether the states increased the percentage of tax collected in the long term.

This proposal spurs from the ongoing debate over how to most effectively fund health, as well as education, in the long run.

Let’s go back to first principles.

The idea of dividing powers between a central government and regional governments is one of practical good governance.

Central governments should only undertake roles that cannot be more effectively completed at a lower level—by those with the most knowledge and relevance to the policy.

The federal government should not be directing the picking up of rubbish, local councils should not be interfering in foreign policy.

However, governments can only be accountable and responsive to local needs if they are collecting their own revenue—a feature seriously lacking in Australia’s federation.

In 1901 the states collected 87 per cent of government revenue. One hundred years later this has decreased to below 20 per cent. Nevertheless, the states are still largely responsible for delivering substantial services, including schools, hospitals and public transport.

To address this imbalance the federal government provides over $100 billion in payments to the states every year. This represents about a quarter of the federal budget, and around half of state budgets. By comparison, American states receive about 22 per cent of their revenue from the federal government, and Canadian provinces around 17 per cent.

The centralisation of revenue has led to the loss of many of the benefits of a federal system. Our states, tied to federal government dictations, are increasingly unable to be innovative or be responsive to local needs.

There is an ongoing blame game between the federal government and the states — the Commonwealth blames the states for lacklustre service delivery, states blame the federal government for lack of revenue.

There is excessive duplication, overlap and high administrative costs.

If successfully implemented, giving the states a share of income tax could seriously improve our federation.

It would finally allow the states to fund their own services, allowing voters to assess where their money is going and hold the respective level of government to account. It would enable beneficial competition between states to provide the most services at the lowest tax rate.

A state income tax will help us once again receive the benefits of a federal system that our constitutional framers envisaged.

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One-clause bill of rights loses support

Interesting to see one of the more ardent supporters of constitutional recognition suddenly revise his expectations downwards:

Influential Yawuru leader Patrick Dodson has signalled his willingness to back a referendum proposition without an explicit constitutional ban on racial discrimination, if the newly formed Referendum Council he co-chairs decides that is in the best interests of the nation.

That’s from this weekend’s Australian. You might recall that Dodson (and others) exclaimed in August that this was a non-negotiable imperative. So that a leader is willing to drop a ‘one-clause bill of rights’ is certainly a good sign. However, any referendum option that inserts more race into the Constitution should still be rejected. As my colleague Simon Breheny explains in the same article:

However, it would be unlikely to appease the Institute of Public Affairs, which wants the Constitution to be “colour blind” and reacted to the Referendum Council’s creation by launching a new campaign website.

“Any constitutional proposal that divides Australians according to race, ethnic background or skin colour will be rejected,” said the IPA’s Simon Breheny.

“The two sections which refer to race should be deleted, and nothing new should be added.”

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IPA welcomes Indigenous recognition council announcement

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The Institute of Public Affairs welcomes the announcement of a bipartisan advisory council on constitutional recognition of Aboriginal and Torres Strait Islander people.

“The IPA believes that all Australians are equal. The Australian Constitution should make no reference to race or ethnicity,” says Simon Breheny, Director of Race Has No Place at free market think tank the Institute of Public Affairs.

“Two current sections in the Constitution refer to race – sections 25 and 51(26). These sections should be deleted, and no new sections referring to race should be added into the Constitution.”

The IPA has produced a booklet – Race has no place – which outlines the positive case for equality in the Australian Constitution.

“Australia’s success as a free and prosperous country is founded on the idea that all humans are of equal worth. All Australians, regardless of their ethnic background, must be treated equally by government and the law. The Australian Constitution should reflect this,” says Mr Breheny.

The IPA is looking forward to actively engaging with the council ahead of a potential referendum regarding the recognition of Aboriginal and Torres Strait Islander people.

To find out more, visit www.racehasnoplace.org.au.

For media and comment: Simon Breheny, Director, Race Has No Place, Institute of Public Affairs, [email protected] or 0400 967 382.

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Why Sir John Kerr got it right 40 years ago

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While 11 November should be the day that we all remember the end of World War I and those who made the ultimate sacrifice to protect our freedom, today also marks 40 years since the Whitlam government was dismissed by Governor-General Sir John Kerr. An event, like Woodstock and Watergate, which is cited ad infinitum by baby boomers determined to re-live their childhood to the fatigue of the rest of us.

The Whitlam government was Australia’s most erratic and incompetent. The 1975 budget was blocked by the opposition in the Senate – a tactic Labor used 169 times in opposition between 1949 and 1972 (the only difference was that they weren’t successful). After months of political wrangling, with the prime minister refusing to call an election, the opposition refusing to compromise and the people stuck in the middle, the Governor-General commissioned Malcolm Fraser to form a government on the condition that:

(a) his MPs pass the 1975 budget;

(b) he not introduce any major policies while he was only the caretaker prime minister;

(c) the dissolution proclamation include 21 blocked Whitlam government bills so that if Whitlam won the election he could pass them in a joint sitting of parliament; and that

(d) he immediately call a general election so that the people could decide the government.

There was no coup – there was an election. Gough Whitlam lost the 1975 election by the biggest landslide in Australian history, and lost heavily again in 1977.

For this, Sir John has been treated abysmally by history, with his memory and actions subject to bizarre allegations questioning his sobriety, the alleged impropriety of seeking legal advice (are people suggesting he should have spoken with nobody?), and even the involvement of America’s CIA.

Sir John Kerr did the best he could to navigate the massive egos of Malcolm Fraser and Gough Whitlam, while also respecting the Constitution, finding a way for the budget to the passed and ensuring that the final decision was made by the Australian people.

His memory deserves a lot more respect.

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High Court decides separation of powers case

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The High Court today handed down its judgment on a case which tested “paperless arrest” laws, and the separation of powers itself, in the Northern Territory.

Relatively new arrest and detention powers in the territory added to the Police Administration Act (NT) gives a police officer the power to arrest and then detain a person for up to four hours without a warrant where the officer believes, on reasonable grounds, that the person has committed, was committing, or about to commit an ‘infringement notice offence‘. These offences range from the relatively minor, and somewhat peculiar offences, such as dumping a refrigerator or other container without first removing the door, to more serious public order laws prohibiting “riotous” behaviour.

It’s important to note that these powers had little oversight from the courts. Only after the four hours were up and someone was brought before the court was the judiciary involved. This formed an important plank of the plaintiff’s argument that the laws gave the executive a power to detain which was punitive or penal in character, and thus beyond the legislative power of the territorial government.

The court held that the four hour time limit is not penal, but administrative in character. However, the case does highlight whether such laws are appropriate. For instance, it’s unjustifiable to detain a person for four hours without recourse for dumping a refrigerator.

And while the power to arrest and detain for infringement notice offences already applies to 35 prescribed offences, the government can simply add more by passing new regulations. These laws deserve more scrutiny.


The High Court’s full judgment, and a summary of the case, can be found here.

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Shorten backs removal of constitutional provisions referring to ‘race’

Michelle Grattan in The Conversation today reports:

Opposition Leader Bill Shorten has said that Indigenous recognition in the Constitution cannot just be “empty poetry” but must lay to rest “the ghosts of the discrimination” haunting the document.

Its “so-called race powers” were crafted for Australia’s past, he said.

In the Northern Territory for the 30th anniversary of the handover of Uluru to its traditional owners, Shorten said the proposed referendum was very important and reiterated that the change must be one of substance.

“We want to make sure the change is not just symbolic. We don’t need more flowery poetry in our Constitution – we just need to be straight.”

The race power refers to Section 51 (26) which gives the Commonwealth the power to make laws for people of any race. There is also an anachronistic reference to race in Section 25.

Shorten is right about removing sections of the Australian Constitution that refer to race. This would be a positive step. The nation’s founding document should be free from references to race for the simple reason that race is irrelevant – we’re all Australian, and we’re all equal.

The IPA supports the removal of the two provisions to which Shorten refers: sections 25 and 51 (xxvi).

To find out more, visit racehasnoplace.org.au.

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Email: Support for freedom of speech continues to grow

While the prime minister has kicked it “into the long grass“, support within the Coalition for freedom of speech continues to grow.

There are now 13 senators who are public in their support of changes to section 18C of the Racial Discrimination Act 1975. (See the full list on FreedomWatch here).

Last week, Senator Zed Seselja was the latest to join the call for free speech, with this 11 minute speech in the Senate. It is a must watch.

This week, Prime Minister Turnbull rejected the opportunity to demonstrate his commitment to freedom of speech (which the IPA’s Simon Breheny suggested they take up last week) saying “the government has no plans to change the Racial Discrimination Act at all”.

Continue Reading →

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Paul Keating calls for a “Indigenous treaty”

Former prime minister Paul Keating is pushing for a treaty with Aboriginal and Torres Strait Islander peoples:

Paul Keating has backed a treaty with Aboriginal and Torres Strait Islander people, describing it as the “unfinished business of the nation” and suggesting it could precede Indigenous recognition in the constitution.

… In an exclusive interview with Fairfax Media, Mr Keating says the push for Indigenous constitutional recognition has lost direction and needs to be given shape and form “by someone who believes in a treaty, someone who believes that the Aboriginal peoples need to be dealt with as a nation”.

… In the interview, to coincide with the release of Keating, by Kerry O’Brien, Mr Keating has played down the importance of a prohibition on racial discrimination in “our very vanilla, horse-and-buggy constitution”.

He said a treaty, or compact, that dealt with Aboriginal people as a nation would complete the process he called for in his Redfern Park speech of 1992. “I think a constitutional recognition could follow the formality of such a compact or treaty. In other words, it would affirm and or acknowledge, rather than being the primary vehicle for it,” he said.

The idea behind a treaty is a divisive one. Rather than acknowledging all Australians as equal, a treaty would divide Australians into groups based on race. The idea that Australians should be separated into different nations is a dangerous one, and should be rejected.

To learn more about the IPA’s Race Has No Place project visit racehasnoplace.org.au.

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McCloy case shows why courts can not be relied on to protect free speech

Last week, the High Court handed down a significant judgment which determined whether various limitations on political donations breached the implied right of political communication in the Australian Constitution.

The case was brought forward by property developer and former Newcastle lord mayer Jeff McCloy, who was the target of a compulsory examination by the controversial anti-corruption agency, ICAC.

This time, ICAC won. However, as Chris Merritt reported in The Australian, there is a second appeal coming up in November.

In this case, the Court was specifically asked to consider whether provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) that:

were impermissible burdens on freedom of communication on government and political matters.

All judges accepted the position that the Australian Constitution contains unwritten rights. Likewise, the judges accepted that the laws did indirectly undermine freedom of political communication.

However, almost as unanimously, the court rejected that the laws were not justified, saying the laws were aimed at a legitimate end of preventing “corruption and undue influence”. Even the “perception of corruption” was enough to justify the restrictive laws.

Continue Reading →

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