RMIT ecologist Peter Fisher has called for an amendment to enshrine environmental protection in the Constitution. He proposes recognition of the rights of plants and animals, with the following text: “The Commonwealth of Australia celebrates the wondrous ecology of Australia, the value of its land and surrounding seas, and recognises the right of species to exist in a sustainable way in all its natural regions.” The South African Bill of Rights includes a human right “to have the environment protected, for the benefit of present and future generations”; Fisher’s idea is an example of wild law, which goes further in extending legal rights to other species.
The Abbott Government is setting up a double dissolution “trigger” by putting the same climate change-related bill before the Senate more than three months after a previous rejection. Section 57 of the Constitution allows the government to request an election to overcome a deadlock between the House of Representatives and the Senate. However, the Australian Financial Review reported that a “senior source” within the government said the trigger was there “just in case”, and “[i]t’s not our intention to use it”. Professor Anne Twomey said the government would be reluctant to call a double dissolution election because “it would be likely to make it even harder for the Coalition to negotiate bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower… [T]he likely outcome of a double dissolution in the next 6 months would be to increase the number of cross-benchers holding the balance of power in the Senate”.
Constitutional scholar Greg Craven is calling for a new round of constitutional conventions to redefine the federal system. Noting that “[t]he word is that the Commission of Audit will recommend serious restitution of powers over school education and much of health to the states”, he suggests looking to history for a practical way forward: “Oddly, there is a pretty clear solution to this particularly murky problem. We have been down this road before, over a century ago. When Australia wanted to go from six bickering colonies to one continental nation, we faced all these issues and more. The process we used was a constitutional convention where our best and brightest — and most bearded — thrashed the issues out. … It worked last time.”
Stephen Grenville of the Lowy Institute, a foreign policy think tank, has suggested that Australia should “get together with New Zealand to make one country with 28 million people.” He cites economic benefits and the compatibility of the two countries’ political cultures and legal systems, and suggests that a shared currency would be a good starting point. Proposals to include New Zealand as a State in Australia’s federation have a long history. It has the same status as Western Australia in the preamble to the Constitution: neither is mentioned in the first recital, but both are included as possible States in paragraph 6.
Constitutional law experts disagree about whether a Tasmanian law would be struck down by the High Court. The Reproductive Health (Access to Abortions) Act 2013 establishes “access zones” prohibiting protests “within a radius of 150 metres from premises at which terminations are provided”. Michael Stokes of the Unitersity of Tasmania says that because the ban on protests is total, “[t]he provision breaches the freedom of political communication and is therefore outside the powers of the parliament”. The University of Melbourne’s Adrienne Stone disagrees, because “the protection is conferred on only political communication relevant to federal politics” and abortion law is a matter for the States. At this stage, the debate is theoretical; no challenge to the law has been announced.
Tony Abbott is expected to launch a push to change the balance of state and commonwealth responsibilities through the release of a “white paper” on federalism. During the 2013 election campaign, Abbott said the division of powers was “our biggest political problem”, and promised a review: “The objective will be to reduce and end, as far as possible, the waste, duplication and second guessing between different levels of government that has resulted, for instance, in the Commonwealth employing 6000 health bureaucrats even though it doesn’t run a single hospital.” If the Liberals win state elections in SA and Tasmania this weekend, they will be in power everywhere except the ACT, which would allow Abbott to be bolder with his proposals. “It is always more helpful to be working with like-minded people who want to be constructive,” he said.
In 2012, the High Court ruled that the Gillard Government’s laws mandating plain cigarette packaging were constitutionally valid. However, the tobacco industry has taken the dispute to international arbitration, arguing that restrictions on the sale of cigarettes are in breach of Australia’s free trade agreements. According to Mike Seccombe, these costly dispute-settlement procedures “have become a means by which big corporations, and often the home countries of those big corporations (notably the United States) seek to subvert the national sovereignty of other countries.” He says that as a result, many countries, including Australia, are questioning whether arbitration processes should be included in future trade treaties.
Professor George Williams says, “Australia stands apart. It is now the only Commonwealth nation that does not have a treaty with its Indigenous peoples.” What’s more, “the Australian Constitution was drafted to deny Aboriginal people their rights and their voice,” and “the Constitution still recognises that people can be discriminated against because of their race. It may be the only Constitution in the world that now permits this.” If we are to have true reconciliation, he argues, we need to amend the Constitution and negotiate a treaty with Australia’s Indigenous peoples.
Section 24 of the Constitution requires the number of House of Representatives electorates in each state to be “in proportion to the respective numbers of their people”—with the exception that there be a minimum of five MHRs from each state. NSW Senator-elect David Leyonhjelm argues that this is undemocratic: because Tasmania’s population growth has been very slow since federation, “while each federal electorate in NSW has about 95,000 voters, in Tasmania there are fewer than 70,000”. He says the five member minimum should be abolished, and “respect for the principles of equality before the law and one vote one value should be embedded in the Constitution, giving Tasmania the same representation as other Australians.”