Victoria’s constitution should not be used to prop up fracking ban

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Sitting before the Victorian Parliament is the Constitution Amendment (Fracking Ban) Bill 2020. It’s a bill to take existing legislative bans on fracking and coal seam gas activities that currently sit in the Mineral Resources (Sustainable Development) Act 1990 and the Petroleum Act 1998 and, effectively, insert them into Victoria’s constitution.

The government said openly that it would amend the constitution to insert the existing legislative bans on fracking and coal seam gas activities.Credit:

At the outset, I want to make it clear that I support, and have always supported, bans on fracking and coal seam gas activities. The concern I have with this bill is not the policy it promulgates, but rather its resort to the constitution as a means of fortifying what are, in essence, policy positions, albeit very important policy positions.

In his second reading speech a few weeks ago, Treasurer Tim Pallas said, “The bill will amend the Constitution Act by introducing a new Part, making it more difficult for a future Parliament to repeal, alter, or vary the existing legislated bans.”

The reason for this is that once the bill passes it will, along with many other provisions of Victoria’s constitution, require a three-fifths majority of each House of Parliament if it is ever to be amended. There are some constitutional provisions which require that amendments pass at a referendum, but that is not the case with this bill.

I can understand why that question would be asked, but it misses the point entirely.

Ideally, a constitution should not evolve into what is effectively a party platform, even if a particular policy is one which attracts bipartisan support. The idea of a written constitution is to set out a basic set of values and framework for government. As Bagehot wrote in 1867 when reflecting on the English Constitution, there are “two parts … first, those which excite and preserve the reverence of the population – the dignified parts … and next, the efficient parts – those by which it, in fact, works and rules.”

The Victorian constitution largely follows this model and contains very little that could be seen as policy oriented. It sets out the basic machinery of government and elections in Victoria and includes provisions for special officeholders whose function in our democracy is non-partisan and essential. These officers include the Ombudsman, Auditor-General, Director of Public Prosecutions and the Electoral Commissioner. Beyond that the document hews very closely to machinery and structure with a prosaic preamble and an important statement of recognition of Aboriginal people.

The great risk, however, with bills like the one before the Victorian Parliament in this instance, is that it will fuel a process which will diminish the Constitution as a document that is supposed to consecrate the constituent elements of our democracy and establish a standing relationship between state and citizen.

Let’s say a future government wanted to ensure that no government could ever increase taxes and inserted a provision into the constitution requiring a referendum before any new tax.

This content was originally published here.

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