The processes of an almost 'secret' Senate Select Committee on Reform of the Australian Federation (SCRAF) should re-start completely, CLA says. SCRAF's inquiry was totally swamped by the August 2010 federal election: the questions asked of the committee are too important to be decided without extensive Australia-wide debate and discussion in the full glare of publicity.

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Reform committee needs more time and resources, CLA says

Completely un-noticed and un-remarked by the media, the day before Australia voted in August 2010, submissions closed for the Senate’s Select Committee on the Reform of the Australian Federation (SCRAF).

Such a major issue of principle was totally overlooked and un-remarked by all parties in the five-week debate leading to election day.  Though the Parliament was prorogued, the Senate continues to operate, with new Senators not taking up positions until 1 July 2011…so the current Senators continue to populate current Senate committees.

CLA’s submission asked SCRAF to re-start the process, from the beginning.  There should be, we said, a new timetable for reporting to the Parliament, holding deliberations, and calling for submissions because:

1. the original brief was too wide and demanding to be answered in a meaningful way in the time available with the resources allocated; and
2. the federal election intervening between forming the select committee and its information-gathering process (with submissions closing the day before the federal election) of itself suggests an extension of the time needed to undertake the inquiry.

In CLA’s opinion, it was not ideal to try to engage the nation in discussing such a critical aspect of Australia’s future as “priorities for reform of relations between the three levels of government within the Australian federation” during a federal election.
“We strongly recommend that the committee starts the consultation process again once the new Parliament is settled and people most concerned with the political process can devote appropriate time and energy to assisting the select committee’s deliberations,” CLA said.

The committee’s brief is to:

(a) inquire into and report by 17 November 2010 on key issues and priorities for the reform of relations between the three levels of government within the Australian federation; and

(b) explore a possible agenda for national reform and to consider ways it can best be implemented in relation to, but not exclusively, the following matters: 

(i) the distribution of constitutional powers and responsibilities between the Commonwealth and the states (including territories),

(ii) financial relations between federal, state and local governments,

(iii) possible constitutional amendment, including the recognition of local government,

(iv) processes, including the Council of Australian Governments, and the referral of powers and procedures for enhancing cooperation between the various levels of Australian government, and

(v) strategies for strengthening Australia's regions and the delivery of services through regional development committees and regional grant programs.

CLA decided to make a submission to SCRAF in a ‘holding’ manner “to ensure we can be part of the process should the select committee proceed on the timetable so far announced”.  As a ‘holding’ statement, we made brief comments on individual aspects of the inquiry:

(a) inquire into and report by 17 November 2010 on key issues and priorities for the reform of relations between the three levels of government within the Australian federation; and

The timetable for this gargantuan task – basically mid-June to mid-November –  was too short, in CLA’s opinion, even as envisaged before a federal election was called. We urge a new timetable be set, particularly as a new Parliament imposes far less time constraint on such a committee. The committee could report in 2010, or even 2011.

(b) explore a possible agenda for national reform and to consider ways it can best be implemented in relation to, but not exclusively, the following matters: 

CLA believes that the widest-possible consultation should occur to develop ‘a possible agenda’. There was not sufficient time, particularly because of the federal election, to canvas sufficiently widely the enormous scope of ‘possible agenda’ proposals.

“”Every university and think-tank in Australia should be involved in this process. However, with just a handful of hours to go to the submission deadline, only one university had made a submission, and only 12 people/groups in total had bothered to contribute. Hundreds, if not thousands, of people and groups should be contributing to this important inquiry,” CLA said. Achieving such wide input of ideas would require time to publicise and promote the process, which had been lacking.

(i) the distribution of constitutional powers and responsibilities between the Commonwealth and the states (including territories),

CLA pointed out to SCRAF that just sub-topic alone could occupy the deliberations of a full select committee for years. For example, just the parenthetical clause (‘including territories’) involves consideration of:

• Equal voting powers between Territory electors, and between Territory/State electors;
  
• Equal rights of territory legislation to be recognised by all States and the Commonwealth;
• Racial Discrimination legislation currently;
• Removing the ability of a veto over Territory Parliament laws by, effectively, the federal Executive;
• Water rights, including rights to subterranean resources;
• The meaning and scope of ‘capital territory’ as defined in the Constitution

CLA said that the select committee could find it needed considerably more time, more staff and greater research resources to cater for the major issues which should be under consideration to produce a proper and full response to the brief.

(ii) financial relations between federal, state and local governments,

It was unrealistic to expect a parliamentary committee to produce a definitive response on such a sub-topic in five (5) months, CLA said, when the matter was obviously one for an extended committee to consider over a much longer time frame.

(iii) possible constitutional amendment, including the recognition of local government,

The ‘possible constitutional amendment’, in response to the brief, would appear to be limitless. “In fact, a reasonable recommendation could well be the writing of an entirely new constitution,” CLA said.

“However, just consideration on whether local government should be recognised in the constitution should be a matter for considerable public and parliamentary discussion and debate over an extended period.

“It took the framers of the constitution more than a decade to decide to not include local government in the document: it should take more than five months for an under-resourced parliamentary committee to come to a different conclusion,” CLA said.

(iv) processes, including the Council of Australian Governments, and the referral of powers and procedures for enhancing cooperation between the various levels of Australian government, and

We referred the select committee to the CLA website, and to CLArion (our monthly newsletter) for our extensive writing over more than two years on this topic. “In summary, CLA believes that the growth and out-of-the-limelight development of COAG, SCAG (Standing Committee of Attorneys-General) and the 41 [1] other Ministerial Councils has been the most detrimental development to Australian democracy since federation,” CLA said.  “We have been writing, speaking and lobbying parliamentarians on our opinion on this topic for more than two years.

“What Executive government – that is, the elite-with-the-elite of the ruling political party federally, and in each State/Territory – sees as ‘efficiency’ of the COAG, SCAG and Ministerial Council process is in fact a way of denying parliamentarians their traditional role.

“COAG, SCAG and Ministerial Councils are emasculating the power of parliaments, and the proper role and responsibility of parliamentarians, particularly backbenchers from all parties.

“Increasingly, pre-agreed legislation is being tabled before federal, state and territory parliaments and MPs are told that: ‘You can’t change that: it has been agreed by SCAG’ (or COAG, or any one of the 41 Ministerial Councils).”

CLA suggested that some MPs sitting on the SCRAF committee would have experienced such an instruction from their party bosses: chairs of parliamentary committees were being told the same thing.  What had developed was a façade process of parliamentary and public consultation, when ‘agreed’ draft legislation stemming from COAG, SCAG or the Ministerial  Councils was brought before a federal, state or territory parliament and its committee processes.

“The extent of the problem was demonstrated earlier this year (2010), when the Labor Caucus stood up the Prime Minister and Ministers at a Caucus meeting and told them they were not to bring ‘agreed’ legislation before the Caucus,” CLA said. “The Caucus pointed out it was Labor policy that it was the Caucus’s prerogative to decide what draft legislation would be introduced, not the prerogative of non-elected, cross-jurisdictional bodies with no direct responsibility to the people, where the agendas and ‘advice’ of bureaucrats outweighs that of the politicians meant to be representing the people.”

We commented that, if ‘unelected judges’ could not be trusted in the Australian democratic system (which was the case, according to the – successful – opponents of a bill of rights for Australia), then unelected councils and standing committees could not be trusted to an even greater extent.

“The processes of these bodies do not involve the release of a formal agenda in advance (or, even, after the meetings); the bodies do not release public minutes (they report in ‘communiques’ instead, drafted by public relations people); and at least one of the bodies – SCAG – operates to a ‘black ball’ system whereby any entity (federal, state, territory) can veto the placing on the agenda of any item,” CLA said.

“The black ball system went out of fashion even in conservative British men’s clubs last century…but the antiquated, undemocratic system still governs what can get on to the agenda of the self-selected, secretive bodies framing what’s good for parliamentarians and the Australian people.”

CLA said the American, Thomas Jefferson, understood the danger of democracy being suborned, by the machinations of the Executive and their unelected bureaucrat advisers, in the way that was now happening with the development and expansion of unconstitutional COAG, SCAG and other Ministerial Councils:

"Free government is founded in jealousy, not confidence.  It is jealousy and not confidence which prescribes limited constitutions, to bind those we are obliged to trust with power.... In questions of power, then, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution."                 – Thomas Jefferson, 1799

(v) strategies for strengthening Australia's regions and the delivery of services through regional development committees and regional grant programs.

This was another part of the brief where the SCRAF committee was being asked to report in too short a time frame with very limited resources on structural ‘reform’ to Australian democracy of such a potentially enormous nature, CLA said..

“Perhaps the wisest course of action for the select committee is to decide to refuse the brief,” we commented.

CLA recommends that course or, at least, to ask the parliament to vote the funds and allocate the resources, including particularly time, that such a demanding brief requires.

“It could well be argued that, if an inquiry into whether or not to have a bill of rights required a four-person consultation committee, a dedicated departmental staff, meetings throughout Australia, polls, the expenditure of about $2m, and the allocation of nearly two years, then an inquiry into Reforming the Australian Federation should involve about a doubling of all those elements,” CLA said. “Five months, with an election taking up (and over) a third of that time, does not seem appropriate.”

CLA referred SCRAF to our earlier submissions on aspects of the current inquiry:

Inquiry into the Machinery of Referendums, House Standing Committee on Legal and Constitutional Affairs Committee: Submission by Civil Liberties Australia http://www.aph.gov.au/house/committee/laca/referendums/report.htm report tabled 8 February 2010 (see generally, but in particular, Widening the franchise on p13)

Inquiry into the proposed Human Rights (Parliamentary Scrutiny) Bill 2010 and Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, Senate Standing Committee on Legal and Constitutional Affairs (Note: Inquiry currently discontinued on proroguing of parliament): Submission by Civil Liberties Australia. http://www.aph.gov.au/Senate/committee/legcon_ctte/human_rights_bills/submissions.htm (See generally, but in particular Constitutional Rights on p10 and following, and p16 and following)