“State of the Federation Address”
An address delivered by Malcolm McCusker AC CVO QC to the
Constitutional Centre of Western Australia
9 July 2015
It gives me special pleasure to be invited by the Constitutional Centre of
Western Australia to deliver the third of what I hope will be an annual event,
the Sir John Forrest Lecture. The Centre, unique in Australia, was established
with bilateral support, as a result of a recommendation made in a report of
the Western Australian Constitutional Committee, of which I was chairman,
delivered some 20 years ago. That recommendation was largely due to a
submission made to the Committee by Dr Harry Phillips. In 1993 Dr Phillips
had published results of a disturbing survey, that the majority of Western
Australians knew little if anything about either the State or Commonwealth
Constitution or the processes of Government. This was mirrored by the
report of a Civic Expert Group appointed by the Prime Minister that there
was widespread public ignorance about many aspects of Government and
the Constitution, findings independently confirmed by the Constitutional
Committee, following extensive State-wide seminars and meetings. As then
Premier the Hon Richard Court said, in opening the first of such Seminars in
February 1994, “The average intelligent, educated Western Australian is
unlikely even to know we have a State Constitution”.
The Committee submitted that although the WA school syllabus provided for
teaching the rudiments of political and civic education, a high percentage of
teachers lacked confidence to teach in an area in which they had had little
preparation themselves.
What was needed, it said, was a user-friendly Centre that could be open to
families and the general public during the week and on the weekend.
Historical events and other special occasions could be celebrated by the
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Centre and programmes tailored to the needs of specific community groups
such as ethnic minorities. Since its establishment, the Centre has, I believe,
demonstrated a commitment to fulfil these aspirations. (The Centre now has
a website, which on the latest count had 56,475 hits and numerous visits
from schools as well as the general public, totalling 47,500 for the last 12
months).
However, we must not be complacent. There is still a large number of
Western Australians (and indeed Australians) who remain relatively
uninformed about Constitutional matters.
It was in 1890, 125 years ago, that the British Colony of Western Australia
was granted self-government, which the colonists had been urging.
Governor Broome, who supported the growing public demand for selfgovernment, drafted a Constitution Bill for debate in the Legislative Council
in 1889.
By then, there was widespread popular pressure for self-
government, already achieved in the other colonies. A delegation headed by
Broome sailed for London to argue the case for self-government. Ultimately,
the delegation prevailed and the Western Australian Constitution Act 1889
was enacted by the British Parliament, albeit with some reluctance in
allowing some 40,000 people to govern such an enormous area of land, a
million square miles, and the Colonial Office unsuccessfully arguing that
independence be granted only to that area south of the 26 parallel. The new
legislature of the colony was empowered to “make laws for the peace order
and good government of the colony”. Except with respect to Aborigines.
Western Australia, in common with all of the other States except Tasmania,
had established, under the Aborigines Protection Act, an Aborigines
Protection Board. Its members were appointed by the Governor and were
responsible directly to him. It would have the power to appoint “protectors”.
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Those coming under the Act were defined as “every aboriginal native of
Australia, every aboriginal half caste or child of a half caste, such half caste or
child habitually associating and living with aboriginals”.
It introduced
important changes relating to the contract employment of aboriginals.
Previously, two settlers could witness a mark made in a contract of
employment, by an illiterate aboriginal. This had been the subject of much
abuse. Under the 1886 Act, contracts had to show the age of the employee,
term of employment, actual work and payment, and be witnessed by a
justice or a protector.
Almost since colonisation began in 1829, some colonists and their
descendants had mistreated, exploited and even murdered aboriginals. This
made the UK Government reluctant to leave them under the control of the
colonists.
So, as a condition of granting responsible government to WA the British
Government insisted that the Aboriginal Protection Board remain an
autonomous body under the authority of the Governor, and that it be funded
through the State Treasury, at ₤5,000 or 1% of the State revenue per annum,
whichever was the greater. This was provided by S.70 of the Constitution.
From the beginning, the 1% exceeded the ₤5,000, even more so, of course,
with the advent of the gold rush.
This was a source of grievance to many Western Australians. Early in 1892
the Premier, Sir John Forrest, proposed the abolition of the Board. He
continued his opposition until it was finally abolished. He even attempted to
bankrupt the Board by making it financially responsible for the Rottnest
Island Aboriginal Prison, an attempt stymied by Governor Robinson.
Ultimately, in 1897, Section 70 of the WA Constitution was amended, the
Board disbanded, and its functions passed to an Aborigines Department
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under the Aborigines Act. In his essay, ‘Aborigines and White Settlers”,
Neville Green comments “Had the 1% of revenue contribution continued, it is
likely that the social problems of the aboriginal population of the State would
be considerably reduced”.
The Aborigines Act gave enormous power to the Chief Protector over
aborigines, as defined by the Act. They were no longer free to work and live
where they wished; many children were forcibly separated from their
aboriginal families, and aborigines were systematically excluded from white
society.
John Forrest, despite his opposition to the Board, did not mistreat aborigines.
His opposition to it stemmed from his view, shared by many others, that the
Board diminished true self-government, because it was not responsible to
the Parliament, but to the Governor. He was a man of extraordinary ability
and achievements. At the age of only 22 he led an expedition over 3,200 kms
to search unsuccessfully for the Leichardt expedition; a year later he
backtracked Eyre’s journey along the south coast from WA to Adelaide and in
1874 left Geraldton, crossing the arid interior to the Adelaide Darwin
telegraph line and then south to Adelaide.
In all these expeditions he never lost a man. He had a careful, methodical
nature and took no unnecessary risks.
He understood the value and
knowledge of the aborigines, and included aboriginal men in every
exploration party.
He and his brother Alexander became justly famous for their exploration and
survey work. They were also pastoralists, and obtained a pastoral lease of
about 400,000 hectares, which became “Minderoo” station. It had no stock,
house or buildings on it. They sent younger brother David, with a flock of
sheep, to establish the station. David travelled north to the station, with two
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aboriginal stockmen and a flock of sheep. Not far from his destination, one
of the stockmen, for reasons unknown, speared him in the thigh while he lay
sleeping, and then fled. The other stockman managed to get Forrest, badly
wounded, to the coast. He then travelled by ship to a hospital in Fremantle.
Once he had recovered from his injury, his two brothers directed him to
return to the station, which he dutifully did, again travelling overland. There,
with the help of aborigines, he constructed buildings, stockyards and fences.
Then a cyclone blew most of it away. Undaunted, he started all over again,
rebuilding and re-establishing a flock of sheep. What a demonstration of the
indomitable “pioneer spirit”!
In 1883 Forrest became the first native-born Western Australian to be
appointed to the Executive Council.
A local newspaper, The Enquirer
reported “Not everyone was accepting of this appointment. No doubt many
of our colonists will feel disappointed at hearing of the promotion of Mr John
Forrest. “The colony must be going to the dogs”, they will mutter,” when we
are not thought worth having an English official sent to us”.
At the age of 43 he became the State’s first Premier. The economy boomed,
the population growing from 50,000 in 1981 to more than 150,000 in less
than 10 years. While he was Premier, many important public works were
undertaken, including the extension of country railways, the Kalgoorlie
pipeline, and the dredging of Fremantle Harbour. Education was extended
and fees abolished in public schools. In 1899, women were granted the vote.
Forrest was also responsible for the establishment of Kings Park, and was the
first President of the Kings Park Board. But to his embarrassment, the man
who had led expeditions across the barren interior of Australia lost his way in
Kings Park when marking the route of a road, finally emerging near nightfall
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on the wrong side of the Park. This misadventure was, needless to say, well
publicised.
In the 1890’s a movement grew for the federation of all of the Australian
colonies. A WA delegation led by Premier Forrest attended the Federal
Conventions of 1897 – 98 and took part in the drafting of the Commonwealth
Constitution Bill. By June 1899 large majorities in four colonies had voted to
federate on the basis of this Constitution, and pressure was mounting for a
referendum to be held in Western Australia.
In May 1898 Forrest had undertaken to hold a referendum to vote on
federation. There was, however, a fear amongst many Western Australians
that a government based in the east would not understand Western
Australians’ needs and problems; and that free trade, an integral part of the
proposed Federal Constitution, would expose Western Australia’s infant
industry to harsh competition. (Those fears, as it turned out, were well
founded). However, there was strong support for federation in the
Goldfields, where most of the diggers were “t’othersiders. They founded a
Reform League which by March 1900 had collected some 28,000 signatures
on a petition to the Crown seeking separation of the Goldfields as a new
colony which might then join the federation. But it had “Buckley’s Chance”.
The Colonial Office was totally opposed to it. Finally, the Commonwealth Bill,
which had been approved by all five of the other States, was put to a
referendum in Western Australia, and accepted by a massive majority in the
Goldfields, as well as smaller majorities in Perth, Fremantle and Albany. By
then (on 9 July 1900, exactly 115 years ago to this day) the Commonwealth
of Australia Constitution Act had already been enacted in the UK Parliament.
The preamble to the UK Act began “Whereas the people of New South Wales,
Victoria, South Australia, Queensland and Tasmania humbly relying on the
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blessing of almighty God have agreed to unite in one indissoluble Federal
Commonwealth under the Crown of United Kingdom of Great Britain and
Ireland and under the Constitution hereby established …”.
You will note that Western Australia was not mentioned, but it joined shortly
afterwards.
Section 9 of the Imperial Act set out the Constitution of the Commonwealth,
which has no preamble.
Forrest was elected to the first Federal Parliament in 1901 and served as
Minister of Defence, Treasurer and in a wartime ministry of William Hughes.
In 1918 he became the first person born in Australia to enter the British
Peerage, as Baron Forrest of Bunbury. Sailing to England to take his seat in
the House of Lords, sadly he died at sea, on September 3, 1918. He left no
children. Probably the most famous of his present descendants is Andrew
(Twiggy) Forrest. John was his Great Uncle. Although the Minderoo Station
passed out of the family’s hands for a time (when wool prices fell) it has now
been repurchased by Twiggy and Minderoo Station is once again run by the
Forrest family. And, as most would be aware, Twiggy has been a driving
force in the training, employment and education of Aborigines. I think John
Forrest would be very pleased.
By 1926 some aborigines had formed a small pressure group, asking for full
citizenship rights for all aborigines living south of Carnarvon. As one put it,
“So that we can get a vote in the country, also one law for us all that is the
same law that governs the whites, also justice and fair play”.
That reasonable aspiration was not to be fulfilled for many years.
In March 1928 a delegation waited on Premier Collier, led by William Harris,
a part aboriginal farmer from Morawa who said “We want to live up to the
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white man’s standard but in order to be able to do this we should be
exempted from the Aborigines Act and allowed to live our lives in our own
ways”. The Moore River system allowed aborigines to be forced into the
Moore River Reserve. Many restrictions were imposed. As William Harris
put it “Every one of us is a prisoner in his own country”.
Nothing came of that delegation. Subsequently, the Chief Protector, Mr
Neville, sought to amend the Aborigines Act, to define more widely the
classes of people who might be classified as aborigines, and extend the
Protector’s powers. Although the Collier government put it to Parliament, it
was defeated, as Neville Green puts it, “By a combination of members
responsive to the pastoral lobby’s dislike of all increases in the Department’s
powers, and old fashioned humane paternalists in the Forrest tradition such
as Sir James Mitchell”.
It is now almost 100 years since Forrest’s death.
How would he have
regarded the state of our federation, and some of the current issues affecting
both Western Australia and the Commonwealth? Three important ones that
I propose to discuss are:
(a) Recognition of aboriginal peoples.
(b) Composition of the Senate – the so-called “State’s House” and
(c) Financial relations between the State and the Commonwealth.
Recognition of Aborigines
On Monday, this week, a meeting was held between various aboriginal
leaders, the Prime Minister, and Leader of the Opposition. It was agreed to
hold a series of consultations, Australia-wide, to decide what proposal, if any,
should be put as a question for a Constitutional referendum, which by
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Section 128 requires the support of a majority of Australian voters, and a
majority of States.
As history shows, that is no easy task. Of the 44 proposals put to 27
referenda since federation, only 8 have passed. Even if, as some surveys
suggest, a substantial majority (up to 2/3) of Australians favour some form of
recognition of aboriginal people, the “devil is in the detail”. The Prime
Minister, Mr Abbott, has said he hopes that a referendum will be held on the
27 May 2017, the 50th anniversary of the 1967 referendum (which was
overwhelming supported). That is a rather tight deadline.
There is, I
understand, to be a discussion paper prepared by a parliamentary committee
chaired by Mr Ken Wyatt, an aboriginal member for Swan. That will then be
circulated, and a series of conventions held. Given the wide range of views
which have already been voiced, as to what amendment, if any, should be
made to the Constitution, it is somewhat optimistic to hope that a consensus
will be reached in time to put a question to a referendum on 27 May 2017.
And, there is a real concern that if, whatever the question is, it does not get
up, that might cause a very emotional reaction by some aboriginal people,
and possibly cries of racism.
An amendment to a State Constitution to provide for such recognition does
not require a referendum.
It can be achieved by a simple Act of the
Parliament.
In Victoria this was done by the insertion of a new section 1A in the
Constitution,
which
begins
with
the
statement
“The
Parliament
acknowledges that the events described in the preamble to this Act occurred
without proper consultation or recognition or involvement of the aboriginal
people of Victoria”, and continues by ”recognising that Victoria’s aboriginal
people, as the original custodians of the land on which the colony of Victoria
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was established, have a unique status as the descendants of Australia’s first
people, have a spiritual social cultural and economic relationship with their
traditional lands and waters within Victoria, and have made a unique and
irreplaceable contribution to the identity and wellbeing of Victoria”. Subsection 3 contains a “no legal effect” clause: “The Parliament does not intend
by this section to create in any person any legal right or give rise to any civil
cause of action or to affect in any way the interpretation of this Act or of any
other law in force in Victoria”.
There was also an amendment to entrench Section 1A so that it could not be
repealed, altered or varied without the support of 3/5th majority both the
Assembly and the Council.
In 2010 Queensland incorporated a lengthy preamble to the Constitution
recognising the Aboriginal peoples, again with a “no legal effect” clause.
NSW followed, in October 2010 with an amendment to the Constitution itself
(not a Preamble) in much shorter form, acknowledging “the aboriginal
people as the State’s first people and nations”. New South Wales has no
preamble to its Constitution. The New South Wales amendment also has a
“no legal effect” clause.
South Australia followed suit on 28 March 2013, but in a much more
expansive form, and again with a “no legal effect” clause.
Tasmania has yet to introduce a bill for recognition.
Indeed, Michael
Mansell, one of the leading voices for aboriginals in Tasmania, has recently
expressed his opposition to any such recognition, because of his belief that it
“stands in the way of a treaty” which is something he continues to espouse.
Following a thoroughly researched report of a joint select committee on
aboriginal constitutional recognition, tabled in both Western Australian
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Houses on 26 March 2015, a Bill was introduced into the Legislative Assembly
by Josie Farrer MLA to insert the following words in the Constitution Act of
1889.
“And whereas the Legislature of the Colony, as previously constituted,
was replaced through this Act with a Parliament, to consist of the
Queen, the Legislative Council and the Legislative Assembly with the
members of both Houses chosen by the people, and as constituted,
continued as the Parliament of the Colony until Western Australia’s
accession as an Original State of the Commonwealth of Australia in
1901 and thereafter has been the Parliament of the State;
“And whereas the Parliament resolves to acknowledge the Aboriginal
peoples as the First Peoples of Western Australia and traditional
custodians of the land, the said Parliament sees to effect reconciliation
with the Aboriginal peoples of Western Australia”.
The Western Australian Bill does not incorporate a “no legal effect” clause,
which was adopted by the other states, I understand, out of an apprehension
that some “activist” High Court might draw unintended implications from the
recognition. The WA Committee did not think that fear justified, and thought
such a clause could diminish the symbolic significance of the recognition.
How would Sir John Forrest have viewed this proposed amendment? One
can only speculate; but despite his strong opposition to the Aboriginal
Protection Board, and despite occasional clashes with aborigines during
some of his expeditions, he was a man of considerable probity with a
humane, if paternalistic, attitude toward aborigines and I believe he would
not have taken issue with this simple amendment, acknowledging the fact
that the aboriginal peoples were the first peoples of Western Australia. He
would certainly approve of the plural, “peoples”, also used in the South
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Australian and Queensland amendments (whereas Victoria and New South
Wales used only the singular).
The aboriginal population of Western
Australia is not one “people”. It is a mistake to treat all aborigines as being
one homogeneous group. As Forrest, and other explorers in those early
times found, there were, and remain, hundreds of different tribes (or “mobs”
as they sometimes refer to their tribal groups) with different languages,
cultures and characteristics. They are not “one people”. Apart from their
humanity, they share two things in common. First, their arrival in Australia
preceded European settlement, although their arrival was not simultaneous,
but in successive waves. Secondly, and importantly, since 1967 they have all
been, like us, full citizens of this democracy.
These are truths which should not be lost sight of, when speaking of
“aboriginal representatives”, or “aboriginal leaders”. How can it be said that
any persons are “leaders” or “representatives” of the whole of the aboriginal
population of Australia? There has never been a general election to appoint
them. They are, undoubtedly, leaders – most of them excellent – who are
aboriginal.
I turn now to the question of recognition of aboriginal people at a national
level. There have been many debates and discussions about the proposal to
amend the Constitution for that purpose. In November 2010, an Expert
Panel was appointed to advise. Its report was submitted on 19 January 2012.
In accepting it, the Prime Minister said that the Panel had been asked to
produce a proposal “that can contribute to a more unified and reconciled
nation and be capable of being supported by an overwhelming majority of
Australians from across the political and social spectrums”. Unfortunately, a
few days later, two members of the Panel tarnished that spirit of optimism
and inclusiveness when they wrote that if the referendum were lost, this
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would “brand Australians to the whole world as racists”. This is, sadly, not
uncommon in public discussions about indigenous issues. Cries of “racism”
are sometimes aimed at anybody who does not uncritically accept whatever
proposition is being put forward. We all have an obligation to discuss,
rationally and without undue emotion, any proposal for constitutional
change.
So it is proper that I should raise, for consideration, a view that some have
expressed: that there is no need to amend the Commonwealth Constitution,
to recognise aboriginal peoples as the original inhabitants, as four of the
eastern states have already included, after varying degrees of consultation
with aboriginal peoples, a statement of recognition in their constitutions; and
Western Australia will almost certainly have done so by the end of this year,
given the standing ovation that Josie Farrer received when she presented the
Bill to the Parliament last month.
The Commonwealth did not settle Australia, or dispossess aboriginal peoples
from their land, or pass the kind of oppressive laws that were enacted in
Western Australia, for example, or engage in the brutal conduct that some of
the early colonists inflicted upon some aboriginal peoples. The dispossession
happened, in different ways, in different and separate colonies, before they
federated, and became states.
As I have said, it has now been decided that a series of conventions is to be
held to attempt to agree on a question to be put to a referendum. That will
certainly be expensive; even more so a constitutional referendum, if one
follows. It will cost millions of dollars. The question may be asked, would not
the money be better spent by trying to improve the lot of disadvantaged
aboriginal communities? Words added to a Constitution of which only a
comparatively few are even aware of, and an even smaller number have read
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or are likely to read, will do nothing to resolve the fundamental problems
suffered by many of our aboriginal peoples. If all that is to be achieved is a
symbolic recognition, then that has already occurred, in each state (or is
about to, in WA) with words considered to be appropriate by the aboriginal
peoples of that state.
In my view, that question is one that should be asked, and be the subject of
temperate debate. Four years ago, in the course of another address to a
conference of the Samuel Griffiths Society, the Honourable Ian Callinan, a
former Justice of the High Court, said that the arguments about what words
(if any) should be included in the Federal Constitution (and where) about
aboriginal recognition are “a diversion from the tragedy of indigenous life in
this country”. It is, he said “rather like 200,000 or so people walking across
the Sydney Harbour Bridge on Reconciliation Day. It may have given all those
people a warm feeling but I suspect it did absolutely nothing for the day to
day life and despair of indigenous people generally”. (A sentiment echoed
only last month by Queensland aboriginal leader, Murandoo Yanner, who a
little less elegantly commented that flowery words in a preamble would be
like the walk across Sydney Harbour Bridge, which achieved f**k all”).
The very fact that the Parliament of each state has seen fit to incorporate
recognition of aboriginal people in their constitutions is of itself evidence
enough, surely, that the electors whom those Parliaments represent
acknowledge that aboriginal peoples were the original occupants of that
state.
An allied question is whether the millions likely to be spent on consultations
and a referendum might be better spent on educating Australians, young and
old, about the importance of principles such as fairness, equality and
democracy. (I recently read, with a shudder, a survey finding that a
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significant proportion of young people surveyed, between the ages of 18 to
25, did not consider democracy important!)
Reaching a consensus on desirable amendments to the Constitution, or
changes outside the Constitution, will in my view be extremely difficult, if not
impossible. Mal Pearson, for whom I have great respect, has rejected what
he referred to as symbolic changes to the Constitution, in favour of an
Australian Declaration of Recognition akin to the US Declaration of
Independence, and a new indigenous advisory and consultative body to give
aborigines a voice in the parliamentary process. How would such a
consultative body be appointed?
And who would be qualified to be a
member? If only aborigines, are they to be defined as, for example, was
done in the WA Aborigines Protection Act in the 1890’s? Mr Yanner has
voiced support for a constitutionally enshrined indigenous advisory body to
government, provided, he said, that it would be empowered to demand
outcomes from government and to take action against the government if it
was doing the wrong thing. Another aboriginal leader, Warren Mundine, has
referred to these as “radical proposals”, unlikely to gain acceptance in a
referendum. Last month, when asked about the idea of such a body to
advise on legislation affecting aborigines he declared “I have a legislative
body already. It’s called the New South Wales Parliament; it’s called the
Commonwealth Parliament. I get the chance to vote in elections for those
parliaments that make decisions. We have had more aborigines going to
State and Federal Parliament than ever before”. He added “Either we are all
equal under the Constitution or we’re not”. He argues that the proposal
would not “get race out of the Constitution”, but put it back.
Mr Mundine went on to make the valid point that the real priorities for
aborigines are jobs, education, school attendance rates, business formation,
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incarceration rates, crimes against women and children.
Constitutional
change will not, in his opinion, achieve any of those goals. As far as I am
aware, no-one has explained how it could.
I think Sir John Forrest would probably have agreed with Warren Mundine.
Recognition that aboriginal peoples inhabited this land before European
settlement is a statement of what most regard as the obvious. For some,
however, there is value in symbolism, and if it can be achieved easily, at a
very modest cost, as with the amendments to State Constitutions, then by all
means do it. But if there are more pressing needs, should they not be given
priority?
That said, I will briefly examine some of the other proposals that are being
voiced.
First, one proposal is to incorporate some form of recognition in the
preamble to the Constitution. In fact (as I have pointed out) there is no
preamble, as such, in the Commonwealth Constitution. There is only a
preamble in the Imperial Act which enacted and gave legal effect to the
Constitution. Only the UK Parliament could amend that. So a preamble
would have to be inserted in the Constitution itself. Many suggest that it
would have to be accompanied by statements describing the context within
which the Constitution was framed. That would pose enormous difficulties
and raise much contention. There would be a multitude of views as to what
wording is appropriate. Aboriginal leaders claim (correctly) that they are not
mentioned in the Constitution; but nor are the settlers, or the pastoralists, or
the convicts, or the explorers, or the migrants, who were Australians (some
3rd and 4th generation) who had made their contribution to Australia before
1901.
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And it should be remembered that in 1999, when the republic question was
put to a referendum, there was a second question, the insertion of a
preamble in the Constitution acknowledging “Aborigines and Torres Strait
islanders, the nation’s first people, for their deep kinship with their lands and
for their ancient and continuing cultures which enrich the life of our country”.
It was rejected, receiving no majority in any state. So the adoption of even a
very simple form of recognition of the Aboriginal peoples cannot be taken for
granted. There would, no doubt, be fears expressed by those opposing it,
that it could be used by the High Court, at some time, to strike down some
laws affecting aborigines – fears which would be heightened by the refusal of
those supporting the Preamble proposal to even contemplate a “no legal
effect” clause such as that adopted by NSW, Victoria, Queensland and South
Australia.
It has also been proposed, in addition to a preamble of recognition, to amend
the Constitution by removing Section 25, which provides that “if by the law
of any state all persons of any race are disqualified from voting at elections
for the more numerous House of the Parliament of the state, then in
reckoning the number of people of the state or of the Commonwealth,
persons of that race resident in that state shall not be counted”. The section
is entirely otiose, and has been for many years. A proposal to amend that
could be put forward at the same time as a Federal election, to minimise
cost. It would be non-contentious.
Another proposal is to remove Section 51 (xxvi). This confers power on the
Parliament to make laws “with respect of the people of any race for whom it
is deemed necessary to make special laws”. It has been suggested that this
should be amended to confine it to laws which benefit indigenous people.
However, some commentators believe that would result in a “lawyers’
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picnic”, with many trips to the High Court to determine whether a particular
law is “beneficial”. Also, there may be circumstances where a law may need
to discriminate in a way which might arguably be “non-beneficial”, in order
to achieve something of wider benefit to indigenous people. For example,
although opposed by some as discriminatory, the Act which enabled the
Commonwealth to stop payment of benefits to persons in aboriginal
communities in the Northern Territory would be seen by some as aimed at
introducing health, education and other community reforms. It should not
be for a Court, but for the elected Parliament, to decide that.
According to the constitutional authors, Quick and Garran, the original
purpose of section 51 (xxvi) (gleaned from Convention debates) was to
authorise the Commonwealth to localise the people of any so-called alien
race within defined areas, to confine them to certain occupations, and
restrict their immigration, as well as giving them special protection and
securing their return of their country of origin. The persons to whom the
power was applicable have been identified by Professor Harrison Moore as
Indian, Afghan and Syrian hawkers, Chinese miners, laundrymen, market
gardeners and furniture manufacturers, Japanese settlers and Kanaka
plantation labourers in Queensland and the various coloured races employed
in the pearl fisheries of Queensland and Western Australia. In its original
form the provision said “the people of any race other than the aboriginal race
in any state for whom it is deemed necessary to make special laws”. The
words “other than the aboriginal race in any state” were deleted as a result
of the 1967 referendum.
It has also been suggested that a provision be inserted in the Constitution to
prohibit discrimination on the ground of race; but there already is a Federal
Act prohibiting racial discrimination, as well as State Acts. Mr Andrew Bolt’s
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case showed the efficacy of S.18C of the Federal Act, which he was found
guilty of breaching by an article in which he suggested that “white skinned
aborigines” were claiming to be aborigines, even though their ancestry was
predominantly European, to obtain benefits available only to aboriginal
people. If it were thought that such legislation is in some way deficient, why
not simply amend it?
Former Attorney-General Philip Ruddock was reported today as warning that
an anti-discrimination clause to recognise aborigines was likely to be rejected
in a referendum. He said that any such provision in the Constitution could
have unforeseen consequences, allowing courts to limit Parliament’s
legislative powers, a point acknowledged by the Race Discrimination
Commission. The apprehension is that the inclusion of such a provision
would, as one MP said, transfer power from the parliament and the
executive to the courts.
Appointment of Senators
I turn now to a question which has given rise to considerable controversy –
how is it possible that candidates with only a miniscule primary vote (such as
Jaqui Lambie) can be elected to the Senate?
Section 7 of the Commonwealth Constitution provides that “the Senate shall
be composed of senators for each State, directly chosen by the people of each
State, voting, until the Parliament otherwise provides, as one electorate”.
Because all States elect the same number of Senators (the Constitution
stipulates 6 until Parliament otherwise provided) it was envisaged that the
Senate would protect the smaller States, such as Western Australia, from
being overborne or dominated by the more populous States of NSW and
Victoria. The latter were in turn fearful of the powers of the Senate, and the
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prospect of bills approved by the Lower House being rejected on grounds
reflecting the views and interests of the less populous states; but as John
Macrossan, a Queensland delegate presciently observed, at the 1891 Sydney
Convention.
“The influence of party will remain much the same as it is now, and
instead of members of the senate voting, as has been suggested, as
states, they will vote as members of parties to which they belong”.
That party influence would play a dominant role in the Senate was foreseen
by Macrossan and others; but I doubt whether the delegates would have
foreseen the way in which the electoral system was manipulated in the 2013
Senate elections to give outcomes that astonished and dismayed most
Australian electors.
In an article with the arresting title, “Let’s Educate the Upper House
Pygmies”, in The Australian, a few months ago, Greg Craven, who delivered
the Sir John Forrest lecture last year, quipped that our complex preferential
voting system means that a “lucky eccentric with a calculator, an arithmetical
mentor and boundless confidence can transform themselves from lacklustre
to legislator”.
As a result of widespread cynicism and concern, in December 2013 a Joint
Standing Committee was appointed to investigate and report. Its permanent
members were drawn from the major parties, 5 from the Senate, 5 from the
Lower House, including the Honourable Gary Gray AO MP, whose willingness
to assist me to understand the complex issues involved and his principled,
non-political approach to them, is appreciated.
The Committee delivered its Report in May 2014. The Foreword to the
Report began with the apt observation
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“The 2013 federal election will long be remembered as a time when our
system of Senate voting let voters down”.
What has led to this? The Committee report identified these factors:
First, it is very easy, and inexpensive, to register a new political party. All that
is needed is 500 members nationally (not already relied on by another party);
an acceptable name (one does wonder how some of the names were
acceptable); a constitution stating the aims; and a $500 fee.
Secondly, almost all voters (understandably) vote above the line, rather than
below it, when they must complete preferences for each candidate, or their
vote will be informal. But when they do vote above the line, they won’t
know where their preferences will end up. The “micro parties” may do deals
to exchange preferences before the election, unknown to the voters unless
they take the trouble to go to the Electoral Office.
The result of what the Committee report describes as a “whirlpool of
exchanges” is unpredictable. Votes for, say, the Anti-Nuclear Party, could
conceivably end up, through the “cascading” effect of preference exchanges,
in assisting in the election of a candidate for a party which supports the
building of nuclear power stations (or vice versa).
The Joint Committee has recommended a number of changes to the Electoral
Act, to remedy this “gaming” of the electoral system and, as it put it, to
“restore the will of the voter”:
It recommends that there be an optional preferential voting system, under
which the voter decides whether or not to preference, and how many parties
or candidates to preference; to remove the need, in below the line voting, to
complete every box; and a number of changes to the party registration rules
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(including increasing party membership to a minimum of 1500) to ensure
that parties are genuine, not just vehicles for electoral manipulation.
Unsurprisingly, the ebullient Clive Palmer, of Palmer United Party, has
publicly announced that if such changes to the Act are introduced, he will
challenge them on constitutional grounds in the High Court. I offer no
opinion on whether that might succeed; but it may well be argued that the
current provisions of the Electoral Act permit the election of senators who
are not “directly chosen by the people”, and are therefore not truly
democratic, and thus in breach of Section 7 of the Constitution.
(I suspect that Clive’s opposition would be even more vehement, if Greg
Craven’s suggestion were to be adopted – that all would-be senators be
required to undergo a course to prepare them for their duties).
It is conventional, even if not obligatory, for the Government of the day to
respond to such a Committee Report within 12 months of it being tabled. As
I have said, this report was tabled on May 2014. One can only speculate on
why there has not, so far, been a positive response, by way of a Bill
proposing the adoption of the bipartisan Committee’s report and unanimous
recommendations, even though such a Bill might be unpopular with some of
the micro party Senators. It would be a great pity if no steps were taken to
prevent another voting fiasco, and thereby further shake the public’s
confidence in the political system and our democracy.
Financial Arrangements and GST Distributions
Alfred Deakin, Australia’s second Prime Minister, and an active participant in
the Convention Debates, wrote in 1902:
“As the power of the purse in Great Britain established by degrees the
authority of the Commons, it will ultimately establish in Australia the
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authority of the Commonwealth. The rights of self-government of the
States have been fondly supposed to be safeguarded by the
Constitution. It left them legally free, but financially bound to the
chariot wheels of the Central Government. Their need will be its
opportunity. The less populous will first succumb; those smitten by
drought or similar misfortune will follow; and finally even the greatest
and most prosperous will, however reluctantly, be brought to heel. Our
Constitution may remain unaltered, but a vital change will have taken
place in the relations between the States and the Commonwealth. The
Commonwealth will have acquired a general control over the States,
while every extension of political power will be made by its means and
go to increase its relative superiority”.
The Constitution allocates the majority of expenditure responsibility to the
states, with the federal government taking on responsibilities that states
could not efficiently handle themselves, such as defence and foreign affairs.
After the centralisation of income taxing powers, the capacity of the States to
raise revenue was significantly diminished. This was accompanied by an
increase in their responsibilities, that has resulted in the Federation being
plagued with “vertical fiscal imbalance”, and the Commonwealth entering
into a number of areas which, in terms of economic efficiency, should be the
sole province of the States.
As one possible means of correcting this, the concept of a broad-based
consumption tax was first seriously floated in the 1975 Asprey Committee’s
report, and then at Prime Minister Bob Hawke’s 1985 taxation summit. The
idea was shelved after pressure from the union movement and other
pressure groups in favour of a capital gains tax and a reformed fringe
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benefits tax, despite Paul Keating's urging as Treasurer to embrace a
consumption tax.
The GST did not have particularly strong support in the early 1990’s after,
ironically enough, Prime Minister Paul Keating was able to run a successful
scare campaign against Dr Hewson’s ‘FightBack’ reform package which
proposed introducing GST. Commentators suggested that an Australian GST
was politically unlikely, even if it had economic merit. This was re-inforced
by John Howard’s comment, as Opposition leader in 1995, that he would
“never ever” introduce a GST. However, in a volte face Mr Howard took the
policy to the 1998 election. His government suffered a huge electoral swing,
although it still retained power.
During GST negotiations between the Commonwealth and the States, the
States had agreed to abolish a range of inefficient state taxes and duties,
such Financial Institutions Duty, stamp duties on transfers of shares and
property. However, a number of concessions had to be made (primarily at
the insistence of the now defunct Australian Democrats) when the GST
legislation went to the Parliament, in order for the government to get the
legislation passed. Those concessions had the effect of very substantially
reducing the base of the GST. That meant, obviously, that the States would
not get the GST distributions they had expected, to compensate them for
abandoning a number of State taxes, so they did not abandon all of them.
In an address to the 2010 Samuel Griffith Society Convention, Mr Colin
Barnett commented that the sharing of GST revenue was significantly
disadvantaging Western Australia, and that “currently” (in 2010) Western
Australia received only 68c for every $ of GST raised in the State.
He rightly acknowledged that, for many years of the Federation, WA had
benefitted from the tax revenue sharing – I recall that WA was referred to, in
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those years, as a “mendicant State”; and he accepted that, with its strong
economy due to mining, it was fair that WA should now be a net contributor.
However, he said, there must be some limit. In 2010, Western Australia was
getting only 68c in the $ back. The Treasury forecast was that by 2013 this
would fall to 55c. It is now 37c in the $, and likely to fall lower. This is, by
far, the lowest on record for any State.
Mr Barnett opined that the Grants Commission had outlived its usefulness –
it is, he said “a mysterious black box” – “no-one knows what goes in, what
goes on, and what comes out”. It penalises success, he complained.
He went on to suggest, rather dramatically, that when you get as low as 55c
in the $, you get close to the point of view of the Boston Tea Party! Was
there a whiff of secessionism in the air? When, as now, it has reached an alltime low, that whiff may be a lot more pungent. Mr Barnett’s address was
given 5 years ago. In April this year, “The Australian” carried a front page
article headed “Barnett’s `Tea Party’ Revolt”, referring to his threat to
“disengage” with the rest of the nation, if WA’s share of GST were to drop, as
the Grants Commission has recommended, from 37c to 29.99c next year.
The Commonwealth Grant Commission’s stated core objective is to “ensure
that the GST revenue is distributed on the basis of horizontal fiscal
equalisation so that each of Australia’s states has the same fiscal capacity,
under average policies, to provide general government infrastructure and
services.” The distribution is, in essence, dependent on each State’s revenue
raising capacity, which is why WA has done so poorly in the distribution
during the mining boom.
A few weeks ago, a discussion paper on reforming the Federation was
produced. It referred to Mr Barnett’s advocacy for a change in the GST
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distribution method, to a per capita one. The paper opined that this would
both make the GST distribution much simpler, and reduce “institutionalised
conflict” between the States over GST. However, the paper predicted this
could cost the Commonwealth $6.8 billion a year, to meet the needs of
“mendicant” States; so it seems unlikely that the Commonwealth will agree
to that suggestion.
Three changes are needed, if the present Grants Commission system is to
continue.
First, gambling revenues should be treated the same way as revenue from
royalties when allocating GST. Currently they are not. This disadvantages WA
because unlike the other States it doesn’t allow poker machines in clubs and
pubs. Not only is WA rewarded for its socially desirable “anti-pokies policy”,
it is effectively penalised for it.
Secondly, the calculation of what States lose in GST, because of revenues
from royalties, is done on a rolling three year cycle. That can leave massive
budget holes, when GST continues to be taken away on the basis of a
calculation made before mining royalties have dramatically dropped. The
twin calculations should be brought into line.
Thirdly, there needs to be greater transparency about the way the Grants
Commission allocates funds to the States and Territories – perhaps by the
Commission providing a full statement to be tabled in Parliament each year.
Conclusion
So what would Forrest have made of the state of our federation in 2015? I
think (as I have said) he would have approved WA’s proposed recognition of
aborigines, but as a pragmatist and former Treasurer of the Commonwealth,
would question whether the expending of money on changing the
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Commonwealth Constitution was wasteful, given other more pressing
practical needs. I agree with the opinion of Professor Geoffrey Bolton, when
he delivered the inaugural Sir John Forrest lecture on 9 July 2013, that
Forrest would not be far apart from the views of one of his successors,
Richard Court, expressed in a Vista lecture, that the Commonwealth should
address the financial grievances of WA, which if not addressed could
encourage “a secessionist frame of mind in the West”; and I expect he would
be horrified by a Senate voting system, still unremedied, that can throw up
the bizarre and undemocratic outcomes of the 2013 election, never intended
or contemplated by those who, like him, attended the Convention debates.
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