Senate debates

Wednesday, 19 June 2013


Environment Protection and Biodiversity Conservation Amendment Bill 2013; Third Reading

11:27 am

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Minister for Broadband, Communications and the Digital Economy) Share this | | Hansard source

I move:

That this bill be now read a third time.

Photo of Simon BirminghamSimon 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.

11:51 am

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

The Greens support this legislation. Local government recognition is long overdue. It is very interesting to hear the debate and also to see the speakers list for today, which is very informative about the tactics that we have seen from the coalition. We have heard from the Leader of the Opposition that, in principle, he supports constitutional recognition. But what does 'in principle' mean when it comes from the opposition leader, Mr Tony Abbott? What is the meaning of 'principle', when it comes to his utterance? It looks like we are about to get a lesson in that. It looks as though we could have the first broken promise from the Leader of the Opposition and he is not even Prime Minister yet! The coalition has been running a campaign of support for constitutional recognition, but there have been disruptive tactics.

Senator Brandis interjecting

Opposition Senators:

Opposition senators interjecting

Photo of Lee RhiannonLee Rhiannon (NSW, Australian Greens) Share this | | Hansard source

I acknowledge the interjections from Mr Brandis and his colleagues here. They have been running a disruptive campaign. Now it looks as though they will try and further disrupt this very important referendum, which we know needs bipartisan support. We know how critical that is. But let us stay with the issue first: what we should be discussing here is how we can facilitate an urgently needed referendum to give certainty to that level of local government. Section 96 of the Australian Constitution needs to be amended to give legal certainty to the Commonwealth's ability to directly fund local government.

That is what I would like to be talking about in the debate, but we have heard the line from Senator Brandis and we can see where that is going. We have been hearing the comments being made in the media today. There is clearly an attempt to severely damage the chances of this referendum. Having been on the inquiry into local government and having heard from so many representatives of that important tier of government about how much it means to them to gain that recognition and why it is so important for so many of the programs that they run, I find that particularly disappointing. Many of them are colleagues of those who sit on the opposition benches, particularly from the National Party. Many of their colleagues, particularly from Queensland, understood how important this is and talked about the extent of their programs.

But I think we also need to remind ourselves that what we could well see here is history repeating itself, because twice there have been attempts to gain this constitutional recognition and twice the coalition went very hard to defeat it. In the context of what we are about to see play out in the coming hours, it is worth reminding ourselves that we have been down this path before and it looks as though the coalition is about to throw away its apparent commitment to constitutional recognition.

It was in 1974, when the Whitlam government put up a similar referendum to what we have now, that the coalition campaigned rigorously against it and it was defeated. Then we saw the same thing in 1988 with the Hawke government. Again, the coalition went in very hard with very disruptive tactics, which were destructive for many of their own constituencies—particularly for people in rural and regional areas, where this uncertainty really hits home.

What we have before us is very, very wrong, because constitutional recognition—to my mind—actually is about a lot more than financial certainty; it is about doing the right thing. It is as if there is a serious omission within our constitution and, clearly, all levels of government should be recognised. But what we are hearing from the coalition and from many of their supporters are some real scare tactics and so much disinformation, which need to be addressed here. For example, the Institute of Public Affairs have been coming out with their arguments about the issue of constitutional recognition. One of their statements is that state governments will be obsolete—how extreme and how ridiculous—but those are the sort of scare tactics that they are running. The IPA have also stated that it would be a disaster for democracy and lead to less accountability. As we know, we have heard that many of the debates—some of them in here and some of them through the media—are questioning the wording of the question itself.

What we have seen in the past month is a build-up in the disruption to this all-important campaign. It is also worth remembering what has been happening this week in Canberra. There are hundreds and hundreds of local government representatives, elected by their councils, who are in Canberra for the national conference of the Australian Local Government Association. I had the opportunity of going to that meeting, and Senator Christine Milne, leader of the Australian Greens, spoke there. She got a fantastic reception when she spoke in support of the yes case for the referendum. This is something very close to the heart of the Greens. A number of years back, a former leader of the Greens, Bob Brown, told the conference that he would raise the issue with the government of the day. That is something that we did under our agreement with Labor.

While there are many aspects of that agreement that have gone pear-shaped, this is one thing that we were able to advance and advance successfully with the coalition, which looked like they were on side for a period, but now the scare tactics are apparent. These are totally unnecessary and are a totally wrong and disruptive way to engage with the democratic process. Let us come to some of the issues that Senator Brandis has just shared with us. First of all, he said that he was 'shocked'. He said, 'I am hard to shock, but I have been shocked.' I think it would be worth remembering what Senator Brandis also said last night, when he was speaking in the very moving tributes to Senator Trish Crossin. At one point he said how he was shameless; that is what we are seeing, again in this debate. He was shameless in how he presented his argument.

The coalition has had a whole tactic running here of building up the level of disruption to make out that this is dysfunctional and cannot work. It most definitely can work. It is worth going back to how things have played out in the preparation and in the process for this all-important referendum. It is worth looking at the report from the Spigelman expert panel, which sets out very clearly some of the mechanisms for advancing the referendum—steps that we have taken. But Senator Brandis is trying to make out that it is otherwise. So let us go back to the actual report, which states in part:

The majority of panel members support a referendum in 2013 subject to two conditions: first, that the Commonwealth negotiate with the States to achieve their support for the financial recognition option; and second, that the Commonwealth adopt steps suggested by ALGA necessary to achieve informed and positive public engagement with the issue, as set out in the section of this report on the concerns about a failed referendum.

Let us look at ALGA, which launched its campaign for a yes vote this weekend. ALGA notes that the yes/no campaign should be overseen by the parliament, with a panel of members appointed to prepare both the yes and no cases. I understand that is what is proceeding. Again, Senator Brandis is throwing up his hands in horror at the money aspects of this—but it has been worked through. When you look at the situation that I have set out, there is consistency. ALGA proposes that the Commonwealth allocate funds for the yes/no cases for each referendum based on the votes of parliamentarians for and against the bill, and that this funding be equivalent to that provided for elections. We have had a clear process; the process has been followed through. At the 12th hour, all of sudden, Senator Brandis is shocked. It is not shock; it is shameless. Let us remember what he really meant to say. Yesterday he was honest; today it seems to have vacated his ability to remember his real tactics here.

Let us get down to the details. The allocation of funding for the yes/no campaign will reflect the overwhelming support that the referendum has here. We know what that is, and this is where the coalition tactics come undone. Let us remember that, when the vote on the financial bill went through the House of Representatives, the vote was 134 in favour and two against. How did we have two coalition members vote against it? Everybody here knows that it was a decision by the coalition to release two of their members to vote against the bill. They released only two to vote against the bill; 134 voted for it. That is the proportion. That is how we have come to the situation where processes are being worked through—we have heard the advice from Spigelman, and we have heard from ALGA on how to set it out—and the coalition have made their call. Only two MPs in the House of Representatives voted against the bill, and now the decision has been made about that allocation.

Senator Brandis, what have you got to be shocked about? What you should be shocked about is your own crude tactics that are now being played out by an opposition that has gone back to form by running a disruptive campaign at every turn. It is very disappointing, because this legislation is needed. History tells us that it is very tough to get a referendum through if there is not the support for it from all the parties that are active in the parliamentary process.

In concluding, I want to emphasise some of the points made by the many local councils that have come to see me over a number of months to discuss how we can gain support for this measure. I particularly pay credit to the Local Government Association of Queensland. They have worked very effectively, with enormous support from their local councils. Again, I emphasise that many of these councils are from constituencies of the National Party in Queensland—and here we see a desertion from a fundamental position that can make a real difference to people in regional and rural areas.

Some of the issues that the Queensland Local Government Association went through were concerned with a program that we have heard a great deal about—the Roads to Recovery program. The councils emphasised the need for increased funding levels, including for urgent bridge upgrades and also a commitment to indexing funding to reflect increases in road and bridge construction costs. They told me they did not feel that they could gain that certainty if they did not have the recognition, because they did not know if it would be challenged. How could they themselves allocate money if they could not be certain that the money would definitely come through from the Commonwealth? Another argument they put was that a responsive and relevant regional community infrastructure funding program, which has local government as a genuine partner, is urgently needed. What many of these councils spoke to me about—I found it very interesting to understand how they work—was that, more and more, they are picking up a range of programs that were once undertaken by other levels of government. We are seeing governments these days, not just coalition but Labor as well, adopt neo-liberal policies, where they ditch so many of the traditional services that they would have run in the past. Local governments often take on those responsibilities. That is why there was emphasis given to this area.

Another point the Queenslanders raised was the need for an updated system of natural disaster relief and recovery arrangements that locks in existing value for money benchmarks to enable councils to deal with future disaster recovery on a more certain footing. Wouldn't the coalition like to ensure that our colleagues in regional and rural areas could be confident about that? No. It looks like they are all going to follow Senator Brandis. We are going to have 16 speakers from the coalition on this measure, all getting up and telling us how bad this process is, how wrong it is and how they now cannot support it. I will be interested to hear their arguments; but, knowing how it has happened before, it is certainly not a good look for the coalition to be deserting their constituency in such a damaging way.

I again emphasise my concern about the comments made by Senator Brandis. It is worrying that the coalition is about to move away from the cross-party support for this important measure. Whatever the outcome is here, if this is a major break with the policy position by opposition leader Mr Tony Abbott, the Greens will continue to work very hard for a yes outcome for the referendum on constitutional recognition of local government. It is important for the Constitution; it is important for our future.

12:06 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

():I rise in support of the Constitution Alteration (Local Government) 2013, and the reason is based on a range of issues. Our nation, which federated in 1901, is a vastly different place now from what it was at that period of time. Let us look at what would be presumed to be the activities of a local government at that point in time: we had horses and carts; we did not have telephones; and we did not have airports. The whole notion of how we saw the world at that point in time is so incredibly different from where we are now.

Now we live in a land of broadband, B-doubles, B-triples and rail. It is a completely different world. We live in an Australia now of 23 million people, whereas at Federation we had 3.9 million. One of the problems with Federation is the design of the Constitution made the creation of new states extremely hard. If we could have the creation of new states, then we would have a greater capacity to deal with the demographic variances apparent in our nation now. Because it is so difficult to create new states—and New England tried to create a new one in 1967; it was knocked out by the inclusion of Newcastle—quite obviously there is always going to be a greater role for local government.

Local government has evolved because it had to. The places where it evolved and became most prominent as a reflection of people's lives are the regional areas. It is now the case that we have seen, as has been alluded to before, programs such as Roads to Recovery, the Black Spot program and the future policy of bridges to recovery. In fact, there have been over 200 streams of funding that have gone from the federal government to local governments.

We have also seen that people are desirous of a greater reflection of their area in their lives. The people of North Queensland most definitely want to be thought of as North Queenslanders. There are over half a million of them up there now. The people of the Riverina call their area the Riverina because they believe in the Riverina. The people of New England call themselves New Englanders because they believe in New England. It is a belief in their area. They have the right to have government close to the people being effective in their lives.

The natural course of our nation was such that, when we had a nation of only 3.9 million people, there was no real cause for local governments because we were then dealing with a nation that was approximately the size of Brisbane and the Gold Coast. They were lucky to be thinking about states; they certainly did not have to think too much about local government because the population really did not require it. By default, states were forms of local government. They were very minor in some instances for the purposes of the new federated nation.

I probably come from a different philosophical viewpoint. I am not a centralist; I am completely the opposite; I believe in the diminution of power; I believe in getting it as low down as possible. I believe that people are just as capable in Townsville as they are in Brisbane. I do not think that any person in Brisbane is endowed with some sort of exceptional quality that it is not possible to find in some individual in Townsville. They can do just as good a job, given the opportunity.

But in this instance, though, on the philosophical argument, I believe that power that gets closer to the people is best for the people. We in this job at a federal level should be doing as much as we possibly can to remove power from here. If you want to send it to the states, send it to the states. Then the states should continue getting it down closer to the people. I do not believe that there is any sort of clandestine plot behind this. I think that it is something that basically takes into account what is actually happening, which is Roads to Recovery et cetera. More specifically, we have been through the Pape case and the Williams case, which were succinct in elucidating the problems.

We have to acknowledge that other nations did not have to deal with the problems that we have. In the development of United States of America, closer settlement was inspired by the arrival of the Mayflower in 1620. Closer settlement, after thousands of years of Indigenous oversight, in our nation started in 1788. So our history of closer settlement is about 225 years long. That would put us against the United States, which, in 1845, had a population of around 19.7 million. In 1850 I think it was 25 or 26 million. So we now have a population of that approximate stage. In 1845 Florida was the 27th state claimed. They have managed to evolve with the times, but we have not. We have the same ones we started with. That is a very hard argument to get past people in Cairns, Townsville, Tamworth, Wagga or Albury because they believe in their local area. They see that the political system is starting to become a manifestation of the status quo of the capital cities. To reflect that, they will take us to where senators reside. They will say, 'In some states all 12 out of 12 senators come from one town.' That is not a reflection of the demographic spread. That means they have all the lower house members and all the senators as well all in the one town. So where is their only form of greater demographic representation at some level of government? It is in local government.

Quite obviously you are always going to have a partisan view. A partisan view will come from state governments that specifically do not want to see this because there is a turf war between state and local governments. But this issue here is an amendment to section 96. The amendment to section 96 basically allows the granting of money to local governments as long as there is oversight and it is authorised by the state. The states will still retain the right to make local governments, break local governments, make them bigger, make them smaller, get rid of them or do what they like with them.

If you went to any state parliament and said, 'Put up your hand all those who don't support this referendum,' everyone would put up their hand. If you went to the local government constitution and said, 'Put up your hand those who do support this referendum,' they would all put up their hand. So we have diametrically opposed positions—both fervently held, but opposite. And that would be natural enough, because they are dealing, in some instances, with a cursory look over their shoulder at the other and with the cautionary principle.

The mechanism for this referendum and the process thus far are bad and, in some instances, appalling. I was affronted by the fact that we do not have an equal distribution for the yes and the no case. I wished in all things to engage in a debate on its merits and not have it clouded by the issue of disproportionate funding. I want it to win because it is right, not because we had more money, and I want to engage in a debate on that premise.

When you go out on a limb, you do so on the premise of trust. You trust someone to do the right thing. On Sunday night, after I had given my speech, Minister Albanese invited me to the stage to shake my hand. That is fine—there was probably a photo and it is good theatre for him. I was easy with that because I trust people. I work on the premise of trust. But when I woke up on Monday I found out that, with respect to the allocation of funding—because it was all supposed to be fair—one side had $10 million and the other side had $500,000. That is not trust; that is being sneaky, and it does not help the case. It causes problems, because you give people $9½ million worth of reasons to think that you are playing a game—and we do not need to play a game.

I like my position on the conservative side of politics because I believe in the liberty of thought, I believe in the jousting of debate and I believe in the separation of the desired acumen from the nastiness that can come into so many things. And might I say that one of those debates is going on on the other side, with the jousting over the leadership in the Labor Party. I wish them the best in working that out. But we have to make sure that we go into this debate with clean hands.

If I could run the show, I would have started this debate ages ago, and I think Spigelman asked the same thing. I would have made sure that we had the states onside. I would have said, 'You know what the problem is; give us the terms that you would live with,' but we have not done that. Most importantly, someone has to try to convince the Australian people, who are always suspicious of referendums, why this one, conducted at breakneck speed, with two months to go, should succeed. Under section 126 of the constitution—I might be corrected by Senator Smith—you have two months from the passage of a bill to the start of prepolling, and if you go a day before that this whole process is unconstitutional and therefore the whole thing will get thrown out. The way in which this has been foisted on us is very, very peculiar.

I am honest—I put myself forward as being honest; you can form your own opinion of what you think of me—and if a vote on the local government referendum were called now, it would be absolutely annihilated. It would not stand a chance. I am not into Pyrrhic victories; I am just into winning. We have to convince the Australian people of the justification of this in light of a leadership dispute in the Labor Party, which sucks out every bit of oxygen that ever existed, and then, in the frame of an election, which will suck out any oxygen that may be left over. So we are making it incredibly hard for ourselves. A wiser head than mine might suggest that we ought to truly consider whether going to a referendum will succeed—and it is on them. But I will shoulder my burden and do my job because I put up my hand and said I would, and I do not break my word. So that is what will happen.

Where does it go from here, who would know? There are 150 seats. One imagines that the only people that local government can now look to for support of this are themselves. It does not need to be said as a tactic; it is just the reality. I will be campaigning flat out to try to win the seat of New England—I can assure you of that—and Mr Albanese will be campaigning flat out to make sure that I do not win. Everybody else will be campaigning flat out to save their bacon or to take somebody else’s. There is only one group of people who can help this referendum succeed, and that is local government themselves. So, where are the campaigns? In which seat do they believe they have this wrapped up and are going to win? They should have 150 campaigns ready to go, but I do not think they have got any. I think there is a belief that, somehow, if you put an ad in the paper or on the television, that does it. No, you literally have to drag people across the line. You have to do what every other politician does: door knock, go to functions, go to town hall meetings. This all has to be done in the same time frame in which an election is going on.

I am being a realist. It is going to be incredibly difficult for this to succeed. But does it need to happen? Yes, I fervently believe it does, for a whole range of reasons, first and foremost that the Pape case and the Williams case have brought about problems that are totally unresolved—and more learned and wise people than me have basically brought that to my attention.

Secondly, it may be that I am indoctrinated, coming from a state and an area where there is a strong belief in local government. Queensland by its nature is a decentralised state and therefore people have a strong belief in their areas. That might not be the statement of the state parliament at the moment, but I assure you it is the statement of the people on the ground. I am the shadow minister, and I have not had one local government authority come and see me yet saying that they do not want it—and they are of all political hues. It is probably the only thing that draws them together. They all want this.

There is a fervent attachment to this debate in many areas. I am incredibly grateful and lucky that, in the coalition, this fervent attachment on both sides is presided over by a group of people who understand that there are differences of views. That is how the coalition operates. I totally respect those who have a different view to mine. I totally understand, to be honest, their bewilderment at times at my views. I have the deepest admiration for my good friend and former colleague former senator Nick Minchin. Nick is pathologically of a different view to me on this one, but I am sure that at the end of this debate we will remain as good friends as we were before it. Isn't that the nature of politics? Isn't that the wonder of Australian democracy? Isn't that the joy and the beauty of this chamber?

This chamber, more than anywhere else, has the capacity to conduct a debate where people have fervently-held, well-articulated and well-considered views from all parts of the spectrum. Isn't it a wonder that we have the respect that people can go forward with those views? This is the political football ground and out there is the recreation area, or whatever you like to call it. In conducting this debate, we hope to portray the merits of both our cases to the Australian people. It is going to be highly instructive to them as to how they vote. I will stand behind the position that I hold, and I know that others will stand behind alternative positions. I will respect absolutely the greatest arbiter of the lot, which is the Australian people at the ballot box, and their decision is coming.

12:25 pm

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

I rise this afternoon to speak on the Constitution Alteration (Local Government) 2013. If the Senate will indulge me for a brief moment, I note that yesterday's date, 18 June, marked exactly one year since my first speech in this place.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Hear, hear!

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

Thank you very much, Senator Joyce. Given my longstanding interest and commitment to maintaining the integrity of Australia's federated structure, I can think of no better way to mark that occasion than to outline some of the dangers to that structure that are contained in this constitutional bill. I want to acknowledge the heartfelt and genuine support of Senator Joyce and others for this important issue. However, I will be voting against this bill.

For a long time I have opposed the constitutional recognition of local government on the basis that it would distort the federal structure, give rise to unforeseen and unintended consequences and lead to an eventual eclipse of the states and their eventual irrelevance as a balance against the centralised power of the Commonwealth. I will come to the detail of those arguments shortly.

First, however, we need to ask ourselves: why are we preparing to hold a referendum in just 87 days' time on an issue which, frankly, does not loom large in the day-to-day thinking of many Australians? After all, there is no massive groundswell of community opinion demanding constitutional recognition of local government. There is no pressing crisis in our system of government or in our federation that demands this reform. Despite the rhetoric from some of this proposal's more fervent supporters, there is no threat to the services currently being provided by local government across Australia. So why this referendum and why now?

I believe a clue as to why this push is coming now lies in an examination of the supporters of this proposal. It is very difficult to identify public supporters of this proposal who are not either members of parliament, mayors, councillors, employees of local governments or the various local government associations that represent local councils. In other words, the chorus of enthusiasts for this proposal starts and ends with political elites, most particularly those who have a vested interest in further centralisation of power in Canberra and local councillors who labour under the misguided belief that this change will mean more funding and greater influence for their councils. In fact, I believe these changes have the potential to neuter councils, but I will come to that shortly.

Let us start at the beginning. Let us remember that this referendum was born in the midst of a deal the Prime Minister did with the Greens and Independent MPs in an effort to cling to office after the 2010 election. The policy imperatives have never really been argued by this government. This is a referendum that is being driven by political necessity, not a desire for substantial constitutional reform. Indeed, supporters of this referendum proposal seem to be deeply confused about why we need constitutional recognition of local government at all.

The Australian Local Government Association, the peak body to which the Gillard government will funnel $10 million in taxpayers' money in order to campaign for a yes vote, says that constitutional recognition of local government is needed because the Williams and the Pape decisions in the High Court have posed a direct threat to council funding from the Commonwealth. ALGA says that the only way around this is to formally recognise local government in the Constitution. So I was rather surprised when, in the course of questioning during senate estimates, Senator Lundy said that the Williams decision was 'not one of our justifications at all'. Senator Lundy's view is indeed borne out by the wording of the government's bill and the accompanying explanatory memorandum, neither of which mentions the High Court or the Williams or Pape decisions. So we have a situation where the two strongest proponents of constitutional change—the Labor government and ALGA—fundamentally disagree about why this change is needed at all. If they cannot agree, why should the Australian people be expected to take a risk and change a Constitution which has served our nation so well since 1901?

Those supporting this change have sought to disguise what they are doing by claiming the change is minor or that it is 'just a few words'. When it comes to wording in the Constitution, many of us know that one word can and will make a difference. Indeed, there is an avalanche of opinion from respected constitutional experts and those with long experience in constitutional interpretation which says that what is being proposed is anything but minor. I trust the views of the former High Court Justice Ian Callinan, who has said:

The proposal will, if adopted, enable the Commonwealth government to side line the states and divide and rule a multiplicity of clamouring councils swollen in ego and, inevitably in bureaucracy. Anyone who would believe that local autonomy and democracy will be enhanced would be delusional. Instead, the flow of funds and accordingly the preference for project over project, and their implementation will be micro-managed by Canberra. The marginalised states will be denied the capacity to design and implement the infrastructure that the states require, and, in addition to the demarcation disputes in the High Court between the states and the Commonwealth, there will be endless litigation between the states, the Commonwealth and the new empowered local authorities as to who is entitled to do what and equally importantly, where.

Those are not my words but the words of a respected High Court judge. I trust the respected constitutional scholar, Professor Anne Twomey of the University of Sydney. She wrote:

A constitutional amendment that permitted the Commonwealth to make grants to local government, ‘on such terms and conditions as the [Commonwealth] Parliament thinks fit’, would provide a further means for the Commonwealth to interfere with and potentially override State policies. It would therefore undermine the federal system of government.

Along with many Australians and many in this chamber, I trust the opinion of former Prime Minister John Howard, who was elegant in his simplicity when he provided his view to the Spigelman expert panel on local government recognition. He said:

Whilst I respect very much the role of local government in our community I am not disposed to support a constitutional change.

The historical evolution of our Constitution has been one of colonies agreeing to form a commonwealth. To use the clumsy jargon, local government units are 'creatures' of the states.

In my opinion even a casual reference to local government in the Constitution would end up having legal implications far beyond what might be advocated by the proponents of such a change.

I also trust the views of the other Liberal and National Party senators who will be standing up for their states and their local communities by opposing this grab for power.

One need not think that it is only conservatives who are opposed to the constitutional change this referendum would propose. Gary Johns, a former Keating government minister, advocates a no vote. Professor Cheryl Saunders, laureate professor at the University of Melbourne law school—someone generally considered to be on the left of the political debate—has said, simply:

This is not a good idea. It is correct, as several premiers have argued, that it undermines the authority of the states in areas of state responsibility.

I also trust the views of the state governments of New South Wales, Victoria and Western Australia, all of which oppose this referendum. I hold great hope that they will soon be joined by the Queensland government.

Nor do all local councils speak with one voice on this matter. In my own state of Western Australia, I am aware of several councils which are ardently opposed to constitutional recognition of local government, among them those of the City of Nedlands, the town of Cambridge in Perth, the Shire of Plantagenet in WA's Great Southern Region and the Shire of Dalwallinu, to name but a few. In my view, opposition to constitutional recognition of local government will only grow stronger in the next 87 days—because its supporters cannot give the people of Australia a single good reason to support it.

When you look behind the vapid sloganeering and ALGA's platitudinous claim that to vote no is to vote against local communities—a claim which makes no sense whatsoever—you are not left with very much at all. How do I know this? When the WA Local Government Association and the City of Perth wrote to me and asked me to support this bill, I replied with a series of questions. I asked those questions in good faith—because, if we are to have a fully informed debate, I believe it is important to fully consider all the issues. I asked the City of Perth for information: a list of the moneys currently received directly from the federal government by the City of Perth; a list of the current and future projects which depend on constitutional recognition of local government in order to proceed; a list of previously planned projects which have not proceeded due to local government not being currently recognised in the Constitution; a copy of the legal advice referred to in their letter which claims that this reform proposal will not reduce the power of states over local communities; a copy of any economic modelling they had or had seen demonstrating the economic benefit of constitutional recognition of local government; a copy of the minutes of the meeting at which the City of Perth's position on the proposed referendum was agreed to and advice as to whether or not that decision was unanimous; advice as to whether or not the City of Perth supports the creation of independent, publicly funded yes and no committees for the purpose of preparing cases to be put before electors; and information about what quantum of ratepayers' funds, if any, they had already committed or expected to commit to the campaign to recognise local government in the Constitution.

I grant you that that was quite a list. But the essence of those questions is the need for supporters of this referendum to justify the need for the proposed change. In our system, the burden of proof should always rest with the prosecution. If we make this change, what will the benefit for the community be? If we do not, what projects will be prevented from going forward? I sent the letter to the City of Perth and to the Western Australian Local Government Association on 3 June. Last week I received a reply from the Lord Mayor of Perth, and I thank her for that. WALGA has, as of this moment, not had the courtesy to reply to my letter. The City of Perth's answers were far from comprehensive; however, I was pleased to note that they do not plan to contribute any ratepayers' funds to the forthcoming campaign.

When we come to identifying projects or services that were under threat because local government is not recognised in the Constitution, the City of Perth evaded the issue. Likewise, they were unable to clearly identify new projects, services or initiatives that were dependent on local government recognition to proceed. I am confident that any replies I receive from other councils in Western Australia will also struggle to identify any such projects. The reason for that is that, despite the spin, this proposed change to our Constitution is not about services and it is not about lower rates for ratepayers or better run councils or better local services—it is about the federal government expanding its influence, having more control over local councils and sidelining the states, all at the expense of local decision-making in local communities across our country.

Worse still, so many mayors and local councils around Australia are supporting this because they naively believe that somehow it will result in more money for their councils and give them greater status. In fact, it will reduce their power in the face of the federal government and very possibly reduce their funding too, especially if state governments, knowing that the federal government has a constitutional power to fund councils, decide to reduce their own funding.

Even the wording of the proposed alteration is suspect. The proposed change does not refer to local councils; it refers to funding being provided to local government bodies. If passed, this referendum will create a veritable lawyers picnic as everyone rushes off to court to get a judicial interpretation of what constitutes a local government body. What happens when there is a ruling that schools, hospitals and other community services run at local levels constitute local government bodies? It would give the federal government licence to run many, many things.

This is surely the most rushed, ill thought through constitutional reform proposition ever put to the Australian people. This bill has never been reviewed independently by the parliament. This government is rushing the bill through this place because it knows that if we had time to stop and understand the consequences the Australian people would run a mile from this proposal, just as they will run a mile from this government. Further proof of that point, if it were needed, came this week when Minister Albanese and the Attorney-General announced the Gillard government's nefarious plan to buy the referendum result through blatant misuse of taxpayers' money. ALGA will be given $10 million to wage its campaign for a yes vote. Those who advocate a no vote will have to make do with just $500,000. This is one of the Gillard government's most scandalous decisions—and, when you consider the performance of this government, that is a very big statement.

The government stacking the deck by, in effect, funding only one side of the debate is a total breach of the basic principle of fairness that has always underpinned our democracy. Whatever their views on the constitutional recognition of local government, all Australians would share the view that the upcoming referendum campaign should be conducted in a fair manner. This lopsided funding of the yes case—using the money of taxpayers who will vote no—is an absolute outrage and a disgrace to our most cherished democratic principle, that of fairness.

When we last had a referendum in Australia, in 1999 on the republic issue, then Prime Minister John Howard ensured that equal public funding was made available to both the yes and no campaigns. This was despite his own clear personal preference for the no campaign. In marked contrast to John Howard's approach, Julia Gillard has done a grubby deal with the Australian Local Government Association in agreeing to funnel taxpayers' money into what will be a blatantly political campaign. Former Prime Minister John Howard set the standard for fairness in these circumstances—and Julia Gillard has not been able to meet it. The government's decision to weight funding for a referendum campaign in this fashion is entirely without precedent. The government's justification of using the House of Representatives vote on this bill to arrive at its funding formula is laughable. If we want proof that this change is intended to undermine the states, witness the way the government is clearly ignoring the views of the Senate—the states house—in this debate.

The Leader of the Opposition has written to the Prime Minister and called on her to reverse this decision. As he correctly notes in his letter, funding one side of the debate over the other by a factor of 20 to one looks like the government is trying to buy the result it wants. Indeed, I believe that is exactly what the government is doing. The Leader of the Opposition's letter to the Prime Minister says:

… it is not up to the Government of the day to pre-determine the outcome of any referendum question: a referendum is a decision for the Australian people to make.'

He is quite correct. Any referendum must be conducted in a spirit of absolute fairness and with both sides being given the opportunity to put their views; not with a desperate Labor government trying to stack the deck in its own favour. This lopsided funding scheme is nothing more than the government trying to drown out the critics of this reform.

Truly great thinkers have a way of remaining relevant beyond their time. In closing my contribution, I reflect on the words of John Stuart Mill, from his 'On Liberty' essay of 1869:

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

Labor senators and those on the cross bench would do well to reflect on the wisdom of those words and urge the Prime Minister to adhere to the very basic principles of democratic fairness and decency in our nation and ensure that equal funding is provided to both the yes and no referendum campaigns.

As Senator Brandis commented earlier, it is a glory of the Liberal Party that all voices are able to be heard on issues that are contentious in our party. It remains the most notable differentiator between our own party and the Australian Labor Party. In my first speech, a year ago today, I prayed for conviction in the words I speak and courage in every action. With all my heart and with all the political principles I hold dear, I reject this bill and the dubious motives that drive it.

Debate interrupted.