Dateline: March 2010

It's now several years since the Referendum on an Australian Republic was passed. It took two attempts to achieve such change and it passed without any great enthusiasm with a slim margin of victory (5 out of 6 states but only 54% to 46%). Many republican supporters voted against the proposal as it failed to deliver a popularly elected President.

Many people were disappointed in the choice of the first Federal President. She was seen as too bland in style but, to be fair, the Prime Minister had to comply with the requirement to convince two-thirds of the Australian Parliament to agree on a first President. Fortuitously, the President has surprised her critics and become very active in discussion on the long-term needs of Australia.

Politics has changed markedly since the turn of the millennium. The ubiquitous use of the internet means that Australian education services are rated as equal to the best in the world. On-line personalised health advice has lifted average Australian life spans by another twenty years. The issues of globalism have still not been resolved with the monopolistic activities of the international technology and media companies still beyond the control of any but the most powerful nations, the USA and China. Privacy of the individual is now the hottest issue on the domestic and international sphere, with rogue nations such as Afghanistan and the Sudan providing haven for blackmailers and spam marketers using unregulated and massive data storage and data matching facilities.

Victorian Constitutional Reform

About six months after the 2004 Referendum, a Victorian Constitutional Convention was held. Victoria had been the State most supportive of the Republic and most supportive of the notion of an elected presidency.

For many decades, there had been no public desire or enthusiasm for State Constitutional reform and the Victorian Constitution of 1975 had almost no recognition by the public or academic circles. Victoria's first Legislative Council first drafted the Victorian Constitution in Melbourne in 1853-4. It was sent to England and approved by the British Parliament in 1855, and was proclaimed in Victoria on 23 November 1855. While it was consolidated in 1975, it can be said that over 150 years there was no significant structural change.

However, after the Federal Republican Referendum had passed, public debate on the Victorian Constitution was surprisingly vigorous. It was the new media outlets such as PBL on-line which led the charge, delivering their content on-line through television-like terminals and in personalised newspapers and radio services. Even the fading free-to-air television, radio and print newspapers contributed to the public discussion.

State politics in 2004 had been focused on whether the Labor Party would survive the challenge of the newly created Communitarian Party. This was the result of a merger between Democrats and large numbers of disaffected critics of the then Labor leadership of Steve Bracks. Late in the year, it became very clear that the Communitarian Party had captured much of the ALP support base and, indeed, after the election of 2004 was installed as the State Opposition with the ALP holding a mere ten seats.

A Victorian Constitutional Convention

Legislation was passed in late 2004 to provide for a Victorian Constitutional Convention. The Convention included the Members of the Legislative Assembly and Council, the Mayors of all 40 of Victoria's then remaining municipalities (including the popularly elected Mayor of Melbourne) and two hundred elected delegates - elected during the municipal elections of March 2005.

Interestingly, the vigorous internet-based campaigning techniques of most delegates encouraged ordinary citizens to participate in the debate with a whole range of innovative suggestions. School and university students participated robustly in on-line discussions and debates providing the first invigoration of campus politics since the late 1960s.

Executive Government

From 1992 and the election of the present State Liberal Government, Victoria had led the way with experimentation in many fields, particularly information technology. Even fourteen years later, Victorians are still proud that we had the first Minister for Multimedia in Australia, indeed, the world, such is the relevance of information technology in every facet of our lives.

In a broad sense, the Internet changed everything, including the way we govern and are governed. The Victorian Electronic Service Delivery System now delivers government services 24 hours a day without the citizen needing to know the department concerned, only the service they need. Launched in 1997, it was a first in the world and has remained ahead of the pack.

What surprised everyone in the Victorian Constitutional debate was the strong push for an elected Executive Governor. Victoria couldn't get its own President, but the enthusiasm for a popularly elected Executive Governor was overwhelming.

The argument ran that internationally, the position and title of 'Governor' has more natural resonance and receives more instant recognition, than that of 'Premier'. In the USA and China - Australia's two most important trading partners - the position of Governor is more easily understood. The USA's development of e-commerce has seen Australia become a natural haven for American business and commerce.

Premier Kennett was initially opposed to the idea of an elected Executive Governor, as he supported the Westminster tradition. However it became clear there was huge support for the change to Executive Governor and ultimately he agreed to contest the first election for such a post.

It became increasingly clear that the facilities at Government House in Melbourne were far more appropriate for an Executive Head of State than for a ceremonial figure. Victorians did not want to see such a building become a listing in the National Trust without having some practical use. For visiting leaders of Government from other countries, Government House was plainly the most appropriate place to meet with the Executive Governor. Premier, later Governor, Kennett might have thought that there would be resistance to him living in Government House, yet this was not the case.

The Cabinet

The creation of the 'Executive Governor' brought forth opportunities to experiment with the appointment of State Ministers from outside the Parliament. While it was viewed to be important to retain the tradition of MPs being elected democratically to parliament, it was thought that people in private businesses, in education, health, law, prepared to contribute a couple of years out of their professional lives, could strongly contribute to public policy and administration. This is the way the US Federal and State administrations operate.

Harbingers of change argued that individuals are deterred from running for Parliament because of its very combative nature. The adversarial nature of question time was seen as just one of the hurdles of getting into Parliament, as well as the lengthy preselection processes, factional feuds in the Labor Party and the branch machinations in the Liberal Party. Therefore, the suggestion was put forward to appoint a small proportion of Ministers from the wider community -professional people from various industries - who could contribute to policy debates and process without having to submit to the normal rigors of entering Parliament. This innovative scheme was adopted, with three such Ministers being appointed for a ten-year experimental period.

These Ministers still had to attend on sitting dates and involve themselves in parliamentary debates and the usual tasks allocated to Parliamentarians, thus quelling fears of democracy and parliamentary practice being compromised. In 2015, it will be interesting to see whether the constitutional provision is maintained. Given the success of the experiment, in particular the performance of the senior union official who was appointed by Premier Kennett as a Minister, it appears likely that it will become the way of the future. Indeed, other states have already begun to follow suit.

 A Victorian Bill of Rights?

The debate on a Bill of Rights for Victoria broke down as it had several times in the past. People simply could not agree on what rights were to be protected. As usual, there was a clash between Right and Left over issues such as Right to Life, Freedom of Speech, and Economic Rights. This acrimony made it impossible to reach unified conclusions about these important issues.

Some pointed to the downside of a Bill of Rights - delivery of an economic bonanza to the legal profession and odd, judicially determined results. Under the Canadian Charter of Rights, for example, The Right to Freedom of Speech negated laws on possession of child pornography, laws banning street prostitution/soliciting and laws regulating cigarette advertising.

Rights have to go hand in hand with responsibilities. A lengthy, costly, community consultative process would lead to disenchantment and community division. The former Prime Minister, Malcolm Fraser, led the argument in support of a Statement of Responsibilities, as well as a Statement of Rights. In the end there was not sufficient time at the Convention to reach a consensus position on these issues.

Eventually, the agreed course of action resulted from a bipartisan agreement between the Liberal Premier and the Leader of the Communitarian Opposition Party: to incorporate the Terms and Reference of the Scrutiny of Acts and Regulations Committee, into the Victorian Constitution as was suggested by the Legal and Constitutional Committee's "Report upon the Constitution Act 1975" in 1990.

Those terms of reference are:

"(a) To consider any Bill introduced into a House of Parliament and to report to the Parliament as to whether the Bill, by express words or otherwise -

(i) Trespasses unduly upon rights or freedoms; or

(ii) Makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;

(iii) Makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions; or

(iv) Inappropriately delegates legislative power; or

(v) Insufficiently subjects the exercise of legislative power to parliamentary scrutiny."

It will be interesting to see, if at the next convention in 2014, agreement can be reached.

And so, the future…

There is much to look forward to as we come up to the 2014 Constitutional Convention.

Issues are arising that would never have been thought of as constitutional. There is strong debate about the ways we control artificial intelligence as it has come to control so many aspects of our lives. Issues of human identity are becoming more focussed as extensive use of cloned parts in surgery have led scientists to believe that brain transplants will be possible within a decade.

The age of information - and information overload - has brought with it exciting new challenges and practice. However, it has also brought problems of privacy violation and control of data spreading. At the next Convention, these issues and more will be raised and hopefully discussed in such a way to bring about solutions.

The above article was submitted for publication to the Constitutional Centenary Foundation - Victorian Chapter -  Newsletter in March 1999.

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