Hansard debates

Mrs McARTHUR (Western Victoria) (11:33): In rising to speak on the Constitution Amendment (Fracking Ban) Bill 2020 I hope to touch on a number of different areas ranging from base party politics and political spin to the esoteric heights of constitutional law and the principles of parliamentary democracy and sovereignty. The starting point is the base party politics, the political spin and the predilections of a Premier who is in all things a party politician, not the leader of a state and still less a statesman. The spin, in other words the lies, surrounding this bill began at the very beginning. Its central purpose is to present the idea that constitutional entrenchment of a ban on fracking is necessary because the Liberal-Nationals coalition might one day decide to reverse the ban. Now, it also has the added benefit of attempting to outflank the Greens, another hallmark of the politically paranoid Premier. But there is no doubt that the bill’s foremost purpose is this attempt to cast the Liberals as friends of fracking.

On 17 March 2020, as this legislation was unveiled, the Andrews press machine went into action—in fact overdrive. The release stated that fracking was banned in 2017, and at the 2018 election Labor promised to put that ban in the constitution to make it harder, and I quote, ‘for future Liberal and National governments to put our food and fibre sector at risk’. This reasoning, repeated ad nauseum by the Labor Party, is absolutely shameless. As the historical record demonstrates categorically in Victoria, it is the Labor Party and only the Labor Party which has supported fracking. Just look at the numbers. Exploratory permits approved: 73 by the Labor Party, none by the coalition. Fracking permits approved: 23 by the Premier’s party, not a single one from this side of the house. By contrast the coalition has been absolutely consistent in its opposition to unconventional gas extraction. My colleague the member for Warrandyte laid this out in the lower house debate on the bill now before us. In painstaking detail he listed the history from the original moratorium by a Liberal Premier to the scores of media releases and parliamentary statements maintaining implacable opposition to the practice of fracking. I do not intend to repeat it here, but the record is clear.

It is the same elsewhere in Australia. Western Australia, under Labor, permits fracking, as does Queensland, as does the Northern Territory—all Labor governments. Yet it is banned in Tasmania, Liberal Tasmania, and banned in sensitive parts of South Australia under a Liberal Premier. And it is regulated more robustly in New South Wales than any other state, under a Liberal Premier. Yet the Premier now has the nerve, in bringing forward this legislation, to present the Labor Party as saviours of the environment and the coalition as its wreckers. Many points have been made about the authoritarian, dictatorial penchant of the Premier in recent months. I would just add here that the desire to rewrite history, to bend the truth of the past to serve the needs of present politics, is another hallmark of cultist leaders the world over.

While we should be worried by this, we can hardly be surprised. This level of misrepresentation, of sheer barefaced lying, is nothing new. We expect it from government, especially this government, and on its own it is regrettable but hardly threatening. What this bill represents, however, is an alarming progression, a move from placing political rhetoric in the media to embedding it in our constitution, because in essence that is what this bill is: a political statement, not a constitutional mechanism, made for reasons of electoral advantage, not for good governance. We have long since given up challenging every political stunt briefed out to the media. Those are short lived. But we cannot do the same in this case, for this is the constitution, not yesterday’s newspaper.

For reasons which I will go on to explain about the effect of the provisions themselves, it would be inexcusably remiss not to shine the spotlight on and place on the record the Premier’s latest and most regrettable overreach. Looking at the bill itself, a number of things stand out and identify it clearly as an Andrews government initiative. It is politically motivated, misrepresentative and likely to be legally ineffective. None of that matters, of course, because it is unnecessary in the first place. Fracking is already banned, and the government could simply use normal legislative means to continue any such ban. This entire exercise comes down to virtue-signalling, opposition-wedging politics. It is a classic of the Andrews genre, a waste of parliamentary time which will have no discernible effect whatsoever on the reality of life in Victoria. The entire parliamentary process, our legislative apparatus and the Victorian constitution itself are simply being used to give some weight to an election promise and to the Premier’s press releases.

We should at least be thankful to the authors of this bill for providing us with some intellectual exercise. I have certainly learned a lot, and most of what I have learned suggests this bill is, to put it charitably, ambitious. My objections relate to two aspects of the bill. First is the attempt to entrench legislation which will bind future parliaments. The second is the use of the constitution as a policy document. On the first, it seems instinctive good sense, based on the most fundamental principles, that Parliament, as a representative of the people and as the people’s representative government, should be sovereign, its deliberations and decisions entirely unfettered. To bind future parliaments to the will of this one runs contrary to this and should be treated with suspicion.

As Mr Limbrick has been quoted as saying, this is a government seeking to rule from the grave. This is a Premier who wants an epitaph from the grave. I can find no more beautiful or eloquent expression of the principle than this from Lord Birkenhead delivering the decision of the Privy Council on the case of McCawley and commenting on those democracies which have chosen not to shackle the independence of their successors, and I quote:

They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived.

This really is fundamental. Who are we to understand what society or technology may look like into the future? It is in principle wrong for us to even consider legislating on matters like this which may change far beyond our understanding. There is an issue of democracy here too. I am privileged to quote from no less expert opinion than that provided to the Scrutiny of Acts and Regulations Committee, which relates this concern to the bill which we now consider. I quote:

The Committee observes that clause 3, to the extent that it prevents future majorities of elected members of the Assembly and Council from repealing or reducing current laws banning hydraulic fracturing or coal seam gas exploration or mining—

and I will highlight this—

may engage the Charter right of every Victorian to participate (by voting in future elections) in the conduct of public affairs (with respect to hydraulic fracturing and coal seam gas exploration and mining) either directly or through freely chosen representatives elected in periodic elections that guarantee the free expression of the will of electors.

Now I have come to my second point here: the absurdity of including policy positions in a constitutional document. I have my own doubts about entrenching anything in legislation for the reasons I have already noted. It is often argued that the power to entrench can act as a safeguard on fundamental issues to prevent future lapses in government in fundamental regards. This may be so, but as a sceptic of government I cannot fail to point out that permitting entrenchment aimed at restricting future undesirable legislation could also permit the entrenchment of future undesirable laws. There is simply no guarantee that entrenchment provisions when in place will only ever be enacted for beneficial purposes.

Still, I do not dispute that provisions do exist to allow entrenchment in the constitutions of Australian states, yet as we have heard already today these relate to the proper considerations of a constitution—namely, the mechanics of government and the powers and procedures of the Parliament. Entrenchment provisions are incredibly rare in the constitutions of Australian states. On matters of policy they are unprecedented. There is good reason for this. As section 6 of the Australia Act 1986 notes on so-called ‘manner and form’ restrictions related to laws made, I quote:

… respecting the constitution, powers or procedure of the Parliament of the State …

It is entirely clear that this bill does not fit that bill. The novelty of this kind of constitutional abuse means it has yet to be tested in the courts, but the principles are clear to us all and we can see indications in existing precedent, most pertinently in West Lakes Ltd v. South Australia of 1980. Chief Justice King noted:

There must be a point at which a special majority provision would appear as an attempt to deprive the parliament of powers rather than as a measure to prescribe the manner or form of their exercise. This point might be reached more quickly where the legislative topic which is the subject of the requirement is not a fundamental constitutional provision.

So in my view, and having listened to the learned opinions of others in this house, there is considerable question as to the validity of the inclusion of this kind of policy platform in the Victorian constitution, and that is being polite. It is breathtaking how contentious, how novel, how potentially incorrect this bill is. In short, it will be graffiti on the constitution. It will do nothing except highlight the vanity of its creator, Premier Andrews. It will be a lasting monument to his obsession with political games and his dishonesty and spin and misrepresentation of political opponents. Indeed it will be a fitting monument to him, an epitaph preserved in perpetuity.

I was concerned to hear Mr Hayes suggesting that there could be other areas that we should entrench in the constitution, other policy positions that we should entrench in the constitution. We have to ask the question: is this just a test case? Is there more to come? What else can we expect entrenched in the constitution if we proceed down this path? This is a very worrying trend for democracy and the future of this state, and I urge the Parliament to give due consideration to this.