Flat White

How Daniel Andrews can still control Victoria – even once he’s gone

8 March 2021

4:00 AM

8 March 2021

4:00 AM

Last sitting week the Victorian Government, with support of most of the opposition, placed a ban on fracking in the state constitution.

Only one courageous Liberal MP crossed the floor and a few of us on the crossbench opposed this legislative insanity — and we are supposed to be the crazy ones.

Fracking is already illegal in Victoria, so I guess you could say it is now doubly illegal.

But this is not about fracking. This is about good governance and whether the Victorian people should have supremacy over the law. The constitution is the basic framework for how a parliament is elected, what its makeup is and what powers it holds. These are fundamental documents that shape our democratic institutions and through the governments empowered by them, our society itself.

It is not supposed to be where you put the policies.

I feel stupid even having to write this because I bet you knew it already. The purpose of the constitution should be the most basic thing you should know if you work in the law-making business.

But the Victorian Government didn’t. As the Member for Bass, Jordan Crugnale told the lower house when speaking in favour of the change, “Victorians [also] believe that the law should not be subject to the whims of a change of government.”

Does that sound very democratic to you?

You can only wonder what else would be in Victoria’s constitution if it had been fiddled with like this by various governments over the years.

Perhaps it would be unconstitutional to be a Catholic, to drive faster than 40 miles per hour, to serve half-strength beer, or to wear a bikini at the beach.

This might be amusing if not for the fact that future democratic parliaments could be ruled from the political grave by their predecessors.

Thankfully, we may yet be able to erase this constitutional graffiti thanks to safeguards within the Australia Act.

Constitutional experts tell me the Australia Act restricts state parliaments from enshrining in the constitution anything that isn’t related to the powers or procedures of parliament. In 1996 the Queensland parliament repealed a provision of their constitution related to appointing public servants.

So while governments can put nearly anything they want in the Constitution, it is likely that this is legally ineffective. In other words, the Bill that was passed this week is based on legal fiction. If it is ever tested, this change to the Victorian constitution might not stick.

But both major parties in Victoria have shown themselves in the past week to be fundamentally disinterested in the traditions of liberal democracies.

And perhaps worse, this has implications for every state in Australia. If we accept this, any government could prevent future governments from creating laws on any topic at all.

David Limbrick is the Liberal Democrats MP for Victoria’s South East Metropolitan region

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