I don’t know why, but these clients are often referred to as “bush lawyers”. These days it seems to me that a better term would be “google lawyers”. Put simply, there is no greater source of uninformed and flagrantly incorrect legal analysis.
In the last year and a half, however, lawyers have had to deal with a new, more insidious type of bush lawyer: the constitutional expert.
The constitution is a complicated document. And it is not only the raw text — there is over a century of case law that helps us to interpret the constitution correctly. You can’t just come to the constitution cold and immediately start telling everyone how laws are “unconstitutional” — you need to have the background of a century of fights over what the document allows and what it does not.
Why has there been a sudden upswing in constitutional arguments? Perhaps it is certain sections of the media who have been keen to “fan the flames”, as it were. Perhaps it has been the passing of laws that, to some people, strike at the very heart of Australian culture.
Or perhaps we can blame an election that was so close, on issues so emotive to some, that dispute and rancour was the inevitable consequence.
It remains to be seen whether the outrage will be doused once we have a more clear-cut election result.
In any event, here are some hard truths about the constitution, for those of you playing along at home.
Julia Gillard’s government is a perfectly regular government that is wholly in accordance with the constitution. There is no legal impediment to minority governments. For that matter, this is not the first minority government we have had in Australia, and many people (myself included) see it as being a preferable way of operating.
People can bleat about the government being illegitimate until they are blue in the face, but it won’t make it true. Julia Gillard formed a government by obtaining the support of the majority of members of the House of representatives, who in turn were elected in an election that was run according to law. All proper processes were followed in her becoming Prime Minister after no party attained an outright majority.
In truth, it was no different to the appointment of any other Prime Minister. The only difference is that, given that no party had a majority, the choice was not fait accompli.
There is also nothing even remotely unconstitutional about a government bringing in a price on Carbon. Whether Julia Gillard lied, changed her mind or reacted to a new situation makes no difference whatsoever.
In (most likely) a little under two years time, the electorate will get to have its say again. If you think Julia Gillard won the last election on a lie, then that election will be your opportunity to pass judgment. Given that we don’t have recall elections in Australia, that is as much say as the electorate has in the process.
Democracy is not dead. Bills have been tabled, they have been voted on, and they have been assented to. That is exactly how democracy works. Governments bring in unpopular laws all the time, and usually do so early in their term so that the electorate have a chance to see the sky not fall on them as expected before they have to vote again.
There is no reasonable basis upon which to suggest that the Clean Energy Acts breach the constitution. There just isn’t. It’s pretty clear that some people have dug out their copy of the constitution, paged through it, tabbed every section that appeared to provide an opportunity, and then frantically started telling anyone who stopped long enough to listen that the acts are unconstitutional.
Section 114 and Section 55 are the two most commonly proffered constitutional bars to the Carbon Price
Section 114 reads as follows:
A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.
Despite what Nationals Senator John Williams has said there is nothing about the Carbon Price that breaches section 114. Just because state owned corporations may have to purchase carbon permits does not make the Carbon Price a “tax on property of any kind belonging to a State” any more than the GST or Company Tax does.
The reasons for this vary from state to state. In NSW, for example, there is explicit legislation (section 9 of the State Owned Corporations Act 1989, if you’re interested) that confirms that State owned corporations are not, and do not represent, the state.
It doesn’t take much research or looking around to discover how wrong the claim of unconstitutionality is. But those blinded by partisanship are often loathe to examine their beliefs to closely, lest it become clear that their views stand on shaky ground.
To suggest that the laws are unconstitutional is downright mischievous. In some cases where the speaker should and probably does know better, it is deceptive, pure and simple.
Similarly, some have pointed to section 55 of the Constitution, which reads as follows:
Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.
As is the usual practice adopted to ensure compliance with section 55, the government has enacted 19 separate Acts in bringing in a price on carbon. It has separately enacted the main Clean Energy Act 2011 which establishes the structure and processes for pricing carbon, and then further Acts which support the operation of that mechanism.
In any event, almost every single act that deals with taxation has some other agenda. It might be a new excise on tobacco that seeks to discourage smoking at the same time as it raises tax. It might be a change to the marginal tax rates to reduce income inequality. It may even be a tax to encourage people to take up private health insurance.
Governments have been passing these laws ever since Federation and there is nothing remarkable about it.
The most frustrating thing about these “commentators” is how shamelessly partisan the arguments are. It is all very well to have an allegiance and almost everyone has a political preference or even affiliation. But, unless you are actually employed by a political party, it’s not unreasonable to except something approaching balanced commentary.
Nonetheless, certain people who should know a lot better have been happy to fan the flames of misinformed outrage because it suits their political agenda. In those circumstances, perhaps we should not be surprised at some of the misguided outrage we are seeing.
There are many reasons to criticise the Labor government and their legislative agenda and it may well be that it will pay a heavy price come the next election.
But, constitutionally, no one can have any complaint. No matter what that website (or radio personality) told you.