2016-09-14
MR BARBER (Northern Metropolitan) — No, thank you. I will not change my position on this issue, but thank you for the invitation, Ms Shing. The reason is, leaving aside if we can for a moment the various political positions that we might like to take and thinking more about a future record and how some Legislative Council possibly many years in the future may want to consider what it is that is going on here, we will just go back to the constitution itself. As they say, when all else fails read the instruction manual.
Section 19 of the Constitution Act 1975 says:
(1) The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise.
That is the basis on which this house has sought the tabling of certain documents that the house needs for its consideration of various matters. Just to give one example of documents that have not yet been provided in full — in fact the most important section of those documents having been excluded by the government in what they tabled before this house — there are the grants that were provided by the previous government to various companies wishing to exploit coal in the Latrobe Valley. This new government arrived; they said, 'There's nothing we can do about those grants. The previous government allocated them'.
This government also announced they were going to come up with a coal policy, which is the kind of thing I thought they might have done in their four years in opposition, but, no, they are now going to put out for public consultation, they tell us, before the end of the year a coal policy. In the meantime the government have gone ahead and issued, or at least extended, exploration licences for coal to some of the same companies that are the recipients of these grants. Not surprisingly, my party and members of the community are asking them to prove their claim that the grants cannot be rescinded and that the companies have a right to access those grants. Well, that is the exact section of the contract that this government has refused to provide. That is the nub of the issue that this house is trying to get to.
The government can hardly hide from the reality of global warming. They can hardly hide from the decisions they have to make. They are even asking this house to make decisions in relation to coal use in Victoria. For example, they asked us to consider an expanded coal royalty this year. In other words this government wants this chamber to legislate in the dark. They want us to legislate in the dark. They will continue to put up a number of propositions before this house, and they will continue to exercise powers as an executive, but they will not give us the information we need to make decisions about these matters.
It is worse than that. They actually defy section 19 of the constitution. They do not believe that this house has the power to require documents, persons and other things. In fact the government have decided that they are the arbiter as to what material this Parliament can see. So much for section 19 of the constitution. Just to remind certain members, in the last Parliament I actually attempted to take the Baillieu government to court to obtain documents that this house had requested — that is, the secret myki report that the Liberals used to justify the continuation of myki and in fact the payment of more money to the myki ticketing system contractor. So if there is any challenge to the powers, privileges and immunities of this house in regard to section 19, so far I am the only person who has attempted to test that one way or another via the court system. However, I can assure any member who is wondering about that that if it was ever to be tested in court, the court is only going to determine whether the power exists, not the manner and occasion of its exercise. So that is an example already where this government simply thinks they can deny or at least attempt to undermine a particular and very important power that is obtained within the constitution.
Then we turn to the other matter that the government has sought to connect — that is, section 27A of the constitution, headed 'Filling of casual vacancies in the Council'. Subsection (1) says:
Subject to this section, if a casual vacancy occurs in the seat of a member of the Council, a person must be chosen to occupy the vacant seat by a joint sitting of the Council and the Assembly.
It is simple enough on its first reading, but of course there is nothing in there that says how quickly that has to happen, nothing in there that in this government's minds prevents them from delaying it indefinitely, according to any period they might choose.
So you have got a government that think they decide what the Parliament is allowed to read, and this same government think they decide when a member is to be placed into this chamber according to the provision under the constitution. Well, that is dictatorship. That is the complete takeover of the entire governance of the state by an executive with a temporary majority in the lower house. Whether they think they are going to have a majority in the lower house in two years time is another question, but certainly the separation of powers — the balance between the different institutions that make our democracy, being the judiciary, the Parliament and the executive — has now been completely overturned, and the government, having won an election and got control of the lower house, can effectively just do whatever they want for four years.
Parliament has got no say in it. In fact Parliament cannot even ask questions. It cannot even ask to see a piece of paper, including some milestones in a funding and grant agreement which within the company and probably within the general coal industry would not be any great secret anyway. The government pigheadedly has decided the Parliament cannot see that material. It makes you wonder what else you think this government would get away with if they had the chance.
Whether it is that the government or the opposition sees these two matters as connected politically, the constitution does not treat them that way. The reason the Greens are maintaining our position on this, not just in terms of consistency over the years we have been here but also in terms of this particular set of circumstances, is that these powers cannot be given away lightly. Victoria's constitution does not have the same status as the Australian constitution — our constitution can be altered at any time by an ordinary vote in most cases, whereas at the federal level the constitution has to be altered by a referendum with quite a high burden — but nevertheless there is plenty of legal finding that suggests that the requirements of the Australian constitution for that separation of powers must also operate on a state-based constitution. That is, the federal constitution creates a federation of states, and those states themselves must have some degree of separation of powers operating as well. We could not simply pass a law here tomorrow that Dan Andrews is the boss of everything for four years and then give ourselves time off. In fact there are limits to how far even we could go if we amended the Victorian constitution.
In any case some of the invisible glue, the democratic assumptions that fall in between the spaces of these words on this page, also appears to be something this government values at something next to zero. They are chuckling away about this to themselves. They think they have just won the last round of this, but there will be people in years to come sitting in here, when political fortunes have turned, and they will not be laughing then. In fact they will be wishing that they had taken this opportunity to concrete in place some of that democratic glue, because not everything can come down to a strict interpretation of what you can get away with under the law. Some of the unwritten conventions of our system are in fact very important, but by definition they are not laws; they are conventions. That means they are respected and followed by all sides until such time as they are not. If the government's intention here is to start tearing up those conventions even as they defy the requirements of the constitution and for that matter lawful resolutions of this house, they are certainly not going to be leaving democracy in better shape than they found it. For that reason the Greens will be supporting this motion.
To access full speeches and debates please visit http://www.parliament.vic.gov.au/hansard where you can search Victorian Hansard publications from 1991 onwards.