The Council of Australian Governments (COAG) “supported the Northern Territory Chief Minister’s resolve for the NT to become Australia’s seventh state by 1 July 2018,” which would be the 40th anniversary of self-government in the NT.
Section 121 of the Constitution allows the Commonwealth Parliament to establish new States. It can impose conditions on the new State, including setting different rules for its representation in the Commonwealth Parliament. Given that the NT’s current population is under 250,000, this would likely be necessary. While Tasmania is over-represented compared to its population, the minimum of 5 lower-house seats required by section 24 only applies to Original States.
In 1998, a referendum was held within the Northern Territory. However, it achieved only 48.1% support, largely because the NT’s significant Indigenous population was concerned about the possible impact on their land rights without the protection of the Senate’s review functions. The NT has a unicameral parliament.
Professor Rolf Gerritson of Charles Darwin University said the same issue was likely to be a sticking point in the new campaign: “I don’t think the proposal has a snowball’s chance in hell of getting up. … I expect the land councils would oppose the repatriation of the Land Rights Act. They have in the past. I think that would be a huge stumbling block in negotiations for statehood.” However, his colleague Ken Parish proposes overcoming this obstacle by establishing an Indigenous advisory body that would have the power of veto over amendments to land rights legislation.
This would need to be included in a new constitution for the NT. At present, its legislative, judicial and executive powers are delegated by the Commonwealth under the Northern Territory (Self-Government) Act 1978 (Cth), but this is not truly a Constitution as it can be amended by an ordinary bill in the Commonwealth Parliament — as it was in 1997 to remove the NT’s power over euthanasia laws. The NT will hold a Constitutional Convention system to consult with the public over the development of a new constitution.
COAG was established in 1992 to allow for intergovernmental discussions about issues of national importance. Its members are the Prime Minister, State and Territory Premiers and Chief Ministers and the President of the Australian Local Government Association.
With separate private members’ bills introduced to parliament by the Greens, the Liberal Democratic Party, the Labor Party, and most recently a multi-party group, the Coalition Government has come under pressure to allow its members a conscience vote on the issue.
After an extensive debate in caucus, the Coalition decided defer a decision on a conscience vote until after the next election. While the Coalition allows its backbench MPs to vote against party policy, the decision locks all Ministers in to opposing the bill.
During the meeting, Abbott told his colleagues he thought a referendum to settle the issue was “extraordinarily attractive“. There is speculation that his position is motivated by a belief that a “no” vote would make the reform difficult to justify, and referendums are historically unlikely to pass without strong bipartisan support.
This new position reflects a sudden change of mind on the part of the Prime Minister. In May, following Ireland’s referendum on the issue, Abbott said, “Referendums are held in this country where there’s a proposal to change the constitution. I don’t think anyone’s suggesting that the constitution needs to be changed in this respect. Under the constitution, questions of marriage are the preserve of the Commonwealth parliament.”
That view reflected the precedent established by the Same-Sex Marriage Case (2013), in which the High Court unanimously held: “the federal Parliament has legislative power to provide for marriage between persons of the same sex”.
Other Coalition members are pushing for a plebiscite, which is a non-binding national vote on an issue. In the past, plebiscites have been held on military conscription and the national anthem. According to the Australian Electoral Commission, a plebiscite held at the same time as the next election would cost $44 million to administer, and a stand-alone plebiscite would cost $158 million.
Ireland has become the first country in the world to legalise same-sex marriage through a Constitutional referendum: “With the final ballots counted, the vote was 62 percent in favor of legalizing same-sex marriage, and 38 percent opposed. The turnout was large — more than 60 percent of the 3.2 million eligible voters cast ballots, and only one district out of 43 voted the measure down.”
All parties in the Oireachtas (Irish parliament) support same-sex marriage. However, Article 41 the Irish Constitution “guarantees to protect the Family”, and “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. Legal advice suggested this meant the common law definition of marriage “between one man and one woman” could not be altered. Though others disagreed, the government was reluctant to simply legislate and risk the law being declared invalid.
A Constitutional Convention was established, made up one-third by politicians and two-thirds by ordinary citizens, and it recommended amending the Constitution to require (not just allow) legislation to permit same-sex marriage. Ireland’s Constitution is entrenched by a referendum process requiring a simple majority of voters to approve amendments. The weekend’s proposal was to add a line to the document: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” Following the successful vote, the Oireachtas will pass the Marriage Bill 2015, and it is expected that the change will be implemented before Christmas this year.
Tony Abbott responded by saying no referendum would be held in Australia, because “I don’t think anyone is suggesting the constitution needs to be changed in this respect”. Professor George Williams agrees, pointing out that in 2013 our High Court “described marriage in gender-neutral terms as being ‘a consensual union formed between natural persons in accordance with legally prescribed requirements'” and therefore same-sex marriage would be valid under section 51(xxi) of the Constitution.
In November, crossbench senator David Leyonhjelm introduced the Freedom to Marry Bill 2014 as a private member. The major parties are now debating internally how they should respond, and a big factor is whether the issue should be left to a conscience vote. The Coalition requires its MPs to vote against same-sex marriage, but senior members (along with Tony Abbott’s sister) are pushing for freedom to vote as they choose. Labor MPs are free to vote either way, but Deputy Leader Tanya Plibersek is pushing to require them to vote for marriage between “all adult couples irrespective of sex”. This conscience vote debate will ultimately determine whether the Freedom to Marry Bill is passed.
Australia’s 22nd Prime Minister, Malcolm Fraser, died yesterday, aged 84. He was a complex politician whose allegiances shifted—some say he moved to the left, while he maintained Australian politics moved to the right. During his term in office, he was a divisive figure due to his role in the Dismissal of Gough Whitlam’s government (though the two men became friends later in life), and in retirement he became estranged from his Liberal Party—even campaigning for the Greens in 2013 due to his opposition to Tony Abbott’s refugee policies. He will be remembered as a “giant of Australian politics”, in part because he was 193cm tall, but mainly because the Fraser Government made lasting changes in a number of significant areas. In 1977, it conducted four referendums. Three passed: giving ACT and NT residents the right to vote in referendums, requiring federal judges to retire at 70 years old, and ensuring Senate casual vacancies would be filled by the same party. A plebiscite endorsing Advance Australia Fair as the national anthem also passed. On governance, Fraser established self-government for the Northern Territory, freedom of information laws, the Federal Court of Australia, and the Administrative Appeals Tribunal (which provided a model for VCAT). He cemented an official policy of multiculturalism, establishing the Australian Ethnic Affairs Council, the Institute of Multicultural Affairs and the Special Broadcasting Service (SBS), and welcoming the Vietnamese “boat people” as refugees. On human rights, Fraser established land rights for Aboriginal people in the Northern Territory, campaigned against apartheid in South Africa, and set up the Human Rights Commission—whose necessity and independence he defended until this year.
Former Prime Minister Gough Whitlam died this morning, aged 98. From a Legal Studies perspective, his short term in office provided much to consider. His program included many legal reforms, including lowering the voting age to 18, allowing the Territories to elect two senators each, establishing the Family Court and a no-fault divorce system, funding legal aid and community legal centres, creating the Australian Law Reform Commission, signing a raft of UN treaties, supporting Indigenous land rights, and introducing significant legislation like the Racial Discrimination Act 1975. He proposed two increases in Commonwealth Constitutional power, but both failed at the 1973 referendum. He called a double-dissolution election in 1974, and is the only Prime Minister to subsequently hold a section 57 joint sitting of both Houses of Parliament to pass deadlocked bills. He controversially appointed his Attorney-General, Senator Lionel Murphy, to the High Court—over the objection of Chief Justice Garfield Barwick. In retaliation NSW filled the Senate vacancy with a non-Labor appointment. Later that year, Queensland also replaced a dead Labor senator with a conservative. This process was changed by a referendum in 1977 to prevent it happening again, but at the time it tipped the balance of power in the Senate and allowed the Opposition to block supply bills. Whitlam refused to resign because he believed he was accountable only to the House of Representatives, but his government could not function without supply. The Chief Justice of the High Court provided legal advice to the Governor-General, arguably in breach of the separation of powers, and instead of dissolving parliament, the Governor-General sacked Whitlam and swore in Malcolm Fraser as the new prime minister. The supply bills were passed by the Senate before Labor senators had been told about the change of government. The House of Representatives immediately voted confidence in Whitlam, but it was too late. Fraser comfortably won the subsequent double-dissolution election. This series of events is known as a Constitutional Crisis because it highlighted that unwritten (and therefore breakable) conventions are very important to the functioning of Australia’s written Constitution.
The Abbott Government has confirmed its plan to increase the pension age from 67 to 70, with Treasurer Joe Hockey stating, “We should also not see someone’s life ending when they turn 65 or 70. They should work as long as they can.” Professor Brian Opeskin has asked whether the same logic should apply to judges, who are forced to retire at 70: “Just as the government is now asking us to accept that the retirement age for the pension should increase, we should ask whether the same thing should be considered for judges. Seventy is now quite young and many judges have a lot to contribute.” The judicial retirement age was enshrined in section 72 of the Constitution by a successful referendum in 1977, because the separation of powers makes it difficult to remove judges who are affected by advanced age. It would require another referendum to change the age.
The Abbott Government will cut all funding from the Indigenous Law Centre at the University of NSW. Established in 1981, the ILC conducts research and publishes journals about Indigenous issues. Its director, Professor Megan Davis, says: “The legal issues affecting Indigenous communities are increasingly complex and part of our role is to explain the complexities of these laws in a way the community can easily understand.” The ILC has been an important contributor to the campaign for Constitutional recognition of Indigenous people, which the government officially supports.
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.