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No, the Voice proposal will not be ‘legally risky’. This misunderstands how constitutions work

<p><a href="https://theconversation.com/profiles/william-partlett-708330">William Partlett</a>, <em><a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a></em></p> <p>The “no” campaign’s primary argument in the current referendum debate focuses on the dangerous consequences of a constitutionally enshrined Voice to Parliament.</p> <p>This argument is relevant to the parliamentary debate about how a constitutional Voice to Parliament will be set up through legislation. But it has no bearing on the referendum debate.</p> <p>This debate involves a different, moral question: do you support the idea of recognising First Australians in the Constitution by giving them a voice on matters that affect them?</p> <h2>What exactly is the ‘no’ campaign arguing?</h2> <p>Although the “no” campaign opposes a constitutionally enshrined Voice, some of its key leaders are not against the general idea of a Voice institution itself. Instead, many “no” campaigners, including Opposition Leader Peter Dutton, <a href="https://www.skynews.com.au/australia-news/voice-to-parliament/dutton-says-his-priority-remains-establishing-a-local-and-regional-voice/video/45255e2fa30463000b1111d7188db1aa">support</a> legislated Voice institutions at the regional level.</p> <p>The “no” side also does not oppose constitutional recognition for First Australians. Dutton has recently promised that if the Voice referendum fails, the Coalition would <a href="https://www.theguardian.com/australia-news/2023/sep/03/peter-dutton-says-coalition-will-hold-indigenous-recognition-referendum-if-voice-to-parliament-vote-fails">hold another referendum</a> on First Nations constitutional recognition if it is returned to power.</p> <p>The “no” side’s main argument, therefore, is a very specific one. It focuses on what it claims are the dangerous consequences of recognising First Australians by placing a Voice institution in the Australian Constitution.</p> <p>In its official campaign <a href="https://aec.gov.au/referendums/files/pamphlet/referendum-booklet.pdf">pamphlet</a>, the “no” side claims that doing this will:</p> <ul> <li> <p>be “legally risky” and lead to litigation</p> </li> <li> <p>“risk delay and dysfunction” in government</p> </li> <li> <p>be a “costly and bureaucratic” institution with “no issue beyond its scope”.</p> </li> </ul> <p>Finally, the “no” side claims the Albanese government has not put forth any details on how this Voice body would function, and it would be a “permanent” change that will open the door for “activists”.</p> <h2>The nature of constitutions</h2> <p>These concerns, however, fundamentally misunderstand how constitutions work.</p> <p>Constitutions are not detailed documents that anticipate every possible circumstance. On the contrary, they are by nature short and incomplete documents. They inherently contain large gaps.</p> <p>In Australia, the evolution of constitutional institutions has been primarily shaped by parliament through legislation.</p> <p>Take the constitutional provision creating the High Court as an example. The Constitution contains very little detail on how the High Court operates. It does not even specify how many justices will be on the court. It merely says:</p> <blockquote> <p>The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.</p> </blockquote> <p>Indeed, it was left to parliament to establish the jurisdiction and powers of the High Court in the <a href="https://www.legislation.gov.au/Details/C2016C00836">Judiciary Act</a> in 1903. And since then, parliament has passed numerous amendments that continue to shape the operation of the court, ensuring it continues to develop in line with the needs of contemporary Australian society.</p> <p>For instance, the court has <a href="https://www.hcourt.gov.au/about/history-of-the-high-court">increased</a> in size from three to seven justices in order to handle its increasing case load, which many in the early 20th century thought would be very light.</p> <h2>The Voice to Parliament proposal</h2> <p>The proposed Voice body will operate in the same way. The <a href="https://voice.gov.au/referendum-2023/referendum-question-and-constitutional-amendment">proposal</a> is typical of other clauses already in the Constitution – it contains little detail other than there “shall be a body” called the “Aboriginal and Torres Straits Islanders Voice” that will make “representations” to parliament.<br />Details on how the body is selected and how it will operate are explicitly left to parliament.</p> <p>The final section of the proposed Voice provision <a href="https://voice.gov.au/referendum-2023/referendum-question-and-constitutional-amendment">states</a>:</p> <blockquote> <p>the parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.</p> </blockquote> <p>If the October referendum vote is successful, it will be up to the current parliament to pass the foundational legislation setting up the Voice body. But this law will always be subject to change by subsequent parliaments. If there are problems with the way it functions, future parliaments can fix those issues through amending legislation (just as the functioning of the High Court has changed over time).</p> <p>The proposed constitutional Voice will, therefore, operate in much the same way as a legislated Voice would. In the end, both would be controlled by parliament.</p> <p>The various concerns of the “no” side are best suited to this legislative debate. For instance, it will be important to ensure the legislation creating the Voice does not lead to dysfunctional government or become a costly or ineffective bureaucracy.</p> <p>But the “no” side’s concerns have no bearing on the constitutional question we all must answer in the referendum.</p> <h2>A moral question</h2> <p>Instead, we face a clearer, moral question on October 14: do we support the idea of recognising First Australians in the Constitution by giving them a voice in matters that affect them?</p> <p>In answering this question, it is worth considering the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/">findings</a> of the Royal Commission into Aboriginal Deaths in Custody from more than 30 years ago.</p> <p>The commission linked the shocking number of First Australians dying in state custody to the historical fact that Aboriginal people have faced “deliberate and systematic disempowerment” for more than a century. It said:</p> <blockquote> <p>Decisions were made about them and for them and imposed upon them.</p> </blockquote> <p>Only First Nations empowerment, the report concluded, would overcome this disadvantage.</p> <p>This empowerment process began with a series of First Nations regional dialogues that ultimately called for a constitutionally enshrined Voice to Parliament in 2017. This empowerment is not real, however, until we heed this call.<!-- Below is The Conversation's page counter tag. Please DO NOT REMOVE. --><img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/212696/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /><!-- End of code. If you don't see any code above, please get new code from the Advanced tab after you click the republish button. The page counter does not collect any personal data. More info: https://theconversation.com/republishing-guidelines --></p> <p><a href="https://theconversation.com/profiles/william-partlett-708330"><em>William Partlett</em></a><em>, Associate Professor, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a></em></p> <p><em>Image credits: Getty </em><em>Images </em></p> <p><em>This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/no-the-voice-proposal-will-not-be-legally-risky-this-misunderstands-how-constitutions-work-212696">original article</a>.</em></p>

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We now know exactly what question the Voice referendum will ask Australians. A constitutional law expert explains

<p>The Albanese government has now released the formal wording of the proposed referendum it will introduce into parliament next week. </p> <p>It had earlier released a draft proposed amendment at the Garma Festival last year, which was intended to start a debate on the wording. Since then, this wording has been the subject of intense discussion and debate in the Referendum Working Group, comprised of Indigenous representatives, which has been advising the government.</p> <p>It has also been scrutinised by the Constitutional Expert Group, which has provided legal advice in response to questions raised by the Referendum Working Group. </p> <p>Many other Australians have raised ideas and concerns in the media and in communications with the government, which have been the subject of analysis and deliberation.</p> <h2>What do the words say?</h2> <p>The wording of the proposed amendment will be as follows:</p> <p><em><strong>Chapter IX – Recognition of Aboriginal and Torres Strait Islander Peoples</strong></em></p> <p><em><strong>129 Aboriginal and Torres Strait Islander Voice</strong></em></p> <p>In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:</p> <p>(1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice;</p> <p>(2) The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;</p> <p>(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.</p> <blockquote class="twitter-tweet"> <p dir="ltr" lang="en">Prime Minister Anthony Albanese has emotionally revealed the wording for the referendum on an Indigenous Voice to Parliament.<a href="https://twitter.com/hashtag/auspol?src=hash&amp;ref_src=twsrc%5Etfw">#auspol</a> <a href="https://twitter.com/hashtag/voicetoparliament?src=hash&amp;ref_src=twsrc%5Etfw">#voicetoparliament</a> <a href="https://t.co/4o4ZU5ykz3">pic.twitter.com/4o4ZU5ykz3</a></p> <p>— The Saturday Paper (@SatPaper) <a href="https://twitter.com/SatPaper/status/1638699476826353664?ref_src=twsrc%5Etfw">March 23, 2023</a></p></blockquote> <h2>What is new?</h2> <p>First, it is now clear this amendment will be placed in its own separate chapter at the end of the Constitution in a new section 129. </p> <p>The title of the chapter makes clear it is directed at the “recognition” of Aboriginal and Torres Strait Islander peoples in the Constitution. </p> <p>This recognition then flows through to some introductory words which form a preamble at the beginning of the section. These words provide “recognition” of Aboriginal and Torres Strait Islander peoples as the “First Peoples of Australia”.</p> <p>The terminology used is careful. It avoids the use of “First Nations”, which is politically more contentious and might have given rise to implications drawn from the term “Nation”. </p> <p>The description “Aboriginal and Torres Strait Islander peoples” is long-standing and well-accepted, and the statement that they were the First Peoples of Australia is one of fact and recognition.</p> <p>The rest of the proposed amendment remains the same except for a minor alteration of words at the end of sub-section (3). </p> <p>Importantly, the guaranteed ability of the Voice to make representations to the executive government remains. </p> <blockquote class="twitter-tweet"> <p dir="ltr" lang="en">Aboriginal and Torres Strait Islander people are asking the country for two simple things. </p> <p>Recognition in the constitution. </p> <p>And a Voice to Parliament. </p> <p>Today the Referendum Working Group has announced the proposed wording for a referendum that will do just that. <a href="https://t.co/NbS6ihhlon">pic.twitter.com/NbS6ihhlon</a></p> <p>— Anthony Albanese (@AlboMP) <a href="https://twitter.com/AlboMP/status/1638691913166651392?ref_src=twsrc%5Etfw">March 22, 2023</a></p></blockquote> <p>However, concerns about this have been addressed by the alteration to sub-section (3). </p> <p>The concern that had been raised was the High Court might draw an implication from sub-section (2) the representations by the Voice must be considered by government decision-makers before they can validly make a decision, potentially resulting in litigation and the delay of decision-making. </p> <p>While this concern had little to no substance, there was a suggestion some words should be added to the end of sub-section (3) to make it abundantly clear it was a matter for parliament to decide what the legal effects of the Voice’s representations would be. </p> <p>Parliament could make the decision that in some cases decision-makers would be obliged to consider representations first, but there would be no such obligation in relation to other types of decisions.</p> <p>This has now been accommodated by a compromise set of words added to the end of sub-section (3). </p> <p>These words say parliament can make laws with respect to “to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”</p> <p>The words “relating to” and “including” broaden the scope of this power. </p> <p>They are intended to permit parliament to legislate about the effect of the Voice’s representations, so it is a matter for parliament to decide whether the representations of the Voice must be considered by decision-makers when making administrative decisions. </p> <p>They are also intended to permit parliament to extend the powers and functions of the Voice as and when needed in the future.</p> <h2>The question on the ballot</h2> <p>The ballot paper never sets out the whole constitutional amendment, as in many cases, it would go for pages. </p> <p>Instead, voters are asked to approve the proposed law, as it is described in its long title. </p> <p>So the question put on the ballot will be set out as follows:</p> <p>"A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice."</p> <p>"Do you approve of this alteration?"</p> <p>Voters then write Yes or No.</p> <h2>What now?</h2> <p>The amendment bill is intended to be introduced next week. When it is introduced, a parliamentary committee will be set up to allow the public to make their own submissions about the amendment. </p> <p>Anyone who has concerns can have their voice heard by the committee and it remains possible that the committee might recommend alterations to the wording. </p> <p>After the committee reports, the amendment bill will be debated in June and if passed, it will go to a referendum between two and six months after its passage. It will then be a matter for the people to decide.</p> <p><em>Image credits: Twitter</em></p> <p><em>This article originally appeared on <a href="https://theconversation.com/we-now-know-exactly-what-question-the-voice-referendum-will-ask-australians-a-constitutional-law-expert-explains-202143" target="_blank" rel="noopener">The Conversation</a>. </em></p>

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What does American basketballer Shaquille O’Neal have to do with the Indigenous Voice to Parliament?

<p>Prime Minister Anthony Albanese met with former NBA star and current TV personality Shaquille O’Neal in Sydney to enlist the sport star’s support for constitutional recognition for an Indigenous voice. O’Neal <a href="https://www.sbs.com.au/news/article/from-insulting-to-welcome-shaquille-oneals-support-for-indigenous-reform-draws-mixed-reactions/0jlz2g5wo" target="_blank" rel="noopener">voiced his support</a> for changes to the Australian Constitution, but is his voice the right one?</p> <p>The prime minister claimed O'Neal reached out to him because “<a href="https://www.abc.net.au/news/2022-08-27/shaquille-o-neal-anthony-albanese-voice-to-parliament/101379246" target="_blank" rel="noopener">he wanted to inform himself</a> about what this debate was about”.</p> <p>Now O'Neal will be a part of the government’s campaign to change the constitution, recording a 15-second advertisement for free. He is meant to be the first of many stars, including unnamed players in the AFL, NRL basketball and netball organisations, to offer their public support for an Indigenous Voice to parliament.</p> <blockquote class="twitter-tweet"> <p dir="ltr" lang="en">What are your thoughts? 💬<a href="https://twitter.com/SHAQ?ref_src=twsrc%5Etfw">@SHAQ</a> visited Parliament over the weekend to meet with PM <a href="https://twitter.com/AlboMP?ref_src=twsrc%5Etfw">@AlboMP</a> and Minister for Indigenous Australians <a href="https://twitter.com/LindaBurneyMP?ref_src=twsrc%5Etfw">@LindaBurneyMP</a> in a show of support for the Government's proposed Indigenous voice to Parliament campaign.⁠<br />⁠<a href="https://twitter.com/hashtag/VoiceToParliament?src=hash&amp;ref_src=twsrc%5Etfw">#VoiceToParliament</a> <a href="https://t.co/9SCIfBk7xM">pic.twitter.com/9SCIfBk7xM</a></p> <p>— NITV (@NITV) <a href="https://twitter.com/NITV/status/1564078033727791104?ref_src=twsrc%5Etfw">August 29, 2022</a></p></blockquote> <h2>Whose voice should be heard on the issue?</h2> <p>For many, the selection of “Shaq” as a spokesperson for the Indigenous Voice to parliament is a strange one. O’Neal is well-known for his viral and sometimes problematic performances on and off the court.</p> <p>During his NBA career, O'Neal built a reputation as an overpowering post presence and a savvy media jokester. In his current job as a sports analyst on the popular television show Inside the NBA, he hosts a popular segment known as “<a href="https://www.nba.com/watch/list/collection/shaqtin-a-fool" target="_blank" rel="noopener">Shaq’tin A Fool</a>,” which features bloopers from recent games.</p> <p>He has made some foolish decisions himself over the years: his feud with Kobe Bryant filled the tabloids for years, the film Kazaam was a ratings failure, and he has made and apologised for a range of <a href="https://www.sportscasting.com/shaquille-oneal-apologized-yao-ming-called-out-dad/" target="_blank" rel="noopener">racist</a> or possibly <a href="https://web.archive.org/web/20120606230641/http://articles.orlandosentinel.com/2002-11-05/sports/0211050282_1_sacramento-kings-christie-lakers" target="_blank" rel="noopener">homophobic</a> comments.</p> <p>Most Americans see O'Neal as a charismatic, even playful, person rather than as an engaged athlete activist. The prime minister claimed O'Neal had done great work in the US around “<a href="https://www.abc.net.au/news/2022-08-27/shaquille-o-neal-anthony-albanese-voice-to-parliament/101379246" target="_blank" rel="noopener">social justice and lifting people up who are marginalised</a>” but has not followed up those comments with any specifics.</p> <h2>Raising awareness</h2> <p>Averill Gordon, Senior Lecturer in Public Relations at Auckland University of Technology, believes the choice of O'Neal will garner widespread domestic and international awareness and support for the Voice to Parliament.</p> <p>“Athletes are a great way to internationalise an issue as sport and music are key themes used to drive most global PR campaigns.”</p> <p>“The biggest challenge in a PR campaign is to move the people who are unaware of an issue to become aware,” she said. “Shaquille’s involvement and subsequent communication means people will become aware of this issue and may even become active. It also creates global traction that will feed back to Australia and circulate the message further, adding global interest that will ironically increase Australian awareness.”</p> <p>She notes the Australian government is addressing a global issue that “affects Australia’s country branding.”</p> <p>“The (Albanese) government is garnering popular international support to drive a national issue. By using a US opinion leader, it moves this national issue to be recognised as a common global issue.”</p> <h2>Support for conservative causes</h2> <p>The inclusion of O'Neal in the Voice campaign undoubtedly brings attention to the government’s position, but the choice is still considered an odd one by many. Albanese’s problem is not people’s unfamiliarity with the debate over the Indigenous voice, but rather that <a href="https://theconversation.com/creating-a-constitutional-voice-the-words-that-could-change-australia-187972" target="_blank" rel="noopener">few people yet know the proposed language</a> of any constitutional change.</p> <p>It’s important to also note that O'Neal is not an avatar of the sort of progressive politics that encompasses issues like the Voice. In the increasingly political NBA, players such as Lebron James and general managers like Daryl Morey have <a href="https://theconversation.com/china-has-form-as-a-sports-bully-but-its-full-court-press-on-the-nba-may-backfire-125141" target="_blank" rel="noopener">opened political firestorms</a> with their critiques of Donald Trump and the Chinese government.</p> <p>O'Neal has previously been tied to more conservative causes. He is a strong supporter of police and sheriff’s departments across the United States, including in Los Angeles, Miami and, controversially, Maricopa Country, Arizona. Maricopa County’s former sheriff, Joe Arpaio, faced criticism for racial profiling, poor conditions for undocumented immigrants, and eventually <a href="https://thehill.com/homenews/administration/348061-trump-pardons-arpaio/" target="_blank" rel="noopener">received a pardon</a> from Trump following his conviction for criminal contempt of court.</p> <p>O’Neal’s strong support for law enforcement, despite the Black Lives Matter protests in the United States, might make activists working in the <a href="https://www.hrw.org/news/2021/04/14/australia-act-indigenous-deaths-custody" target="_blank" rel="noopener">Stop First Nations Deaths in Custody</a> uncomfortable, as it has <a href="https://www.theroot.com/shaquille-o-neals-politics-have-always-been-confusing-1823768959" target="_blank" rel="noopener">for many African Americans too</a>.</p> <p>If O'Neal has become a progressive, the change happened recently, since he admitted in 2020 that he had never voted. In subsequent political commentary, he argued athletes should keep quiet in the press and social media. He <a href="https://www.cnbc.com/2020/10/12/why-shaquille-oneal-voted-for-the-first-time.html" target="_blank" rel="noopener">told Sports Illustrated</a>:</p> <blockquote> <p>My thought is that if you are not an expert on it, or if you haven’t been doing it, don’t do it.</p> </blockquote> <p>So when did he become an expert on constitutional issues in Australia?</p> <h2>Indigenous voices divided?</h2> <p>The government must also take care that any Voice spokespeople, including O'Neal, do not replace the voices of Aboriginal and Torres Straits Islander people. There is a vigorous debate among Indigenous people about the shape of any Voice to parliament.</p> <p>Minister for Indigenous Australians and Wiradjuri woman Linda Burney was with Albanese and O'Neal on Saturday. She lauded O'Neal’s efforts, presenting the American with a boomerang made by Indigenous artist Josh Evans and a South Sydney Rabbitohs Indigenous round jersey.</p> <p>Indigenous politicians from across the political spectrum have illustrated the complexity of this issue in Australia and the unsuitability of O'Neal as a commentator on it. On the political right, Country Liberal Party Senator Jacinta Nampijinpa Price, a Warlpiri woman, said “I’ve no doubt Shaq’s a top bloke but it’s <a href="https://www.abc.net.au/news/2022-08-29/analysis-shaq-loves-indigenous-voice-but-will-it-score/101381066" target="_blank" rel="noopener">a bit insulting</a> to call on a black American to help with black Australians as if this is all about the colour of one’s skin.” She followed up by calling Albanese’s move a desperate measure.</p> <p>Green Party’s Senator Lidia Thorpe, of DjabWurrung, Gunnai, and Gunditjmara descent, also took aim at O’Neal. She wrote on Twitter:</p> <blockquote class="twitter-tweet"> <p dir="ltr" lang="en">Thought a Black man coming to our Country would be more respectful to First Nations people than interfering in what is a controversial topic, dividing our people. Ill advised, hope you take the time to set it right <a href="https://twitter.com/SHAQ?ref_src=twsrc%5Etfw">@SHAQ</a>. We don’t come to your country&amp; interfere in your business.</p> <p>— Senator Lidia Thorpe (@SenatorThorpe) <a href="https://twitter.com/SenatorThorpe/status/1563719706418479104?ref_src=twsrc%5Etfw">August 28, 2022</a></p></blockquote> <h2>‘Nothing about us without us’</h2> <p>In fact, there is reason to worry the selection of O'Neal as a spokesperson might overshadow the work Indigenous Australians have done in the sports space already.</p> <p>In the past, Aboriginal and Torres Strait Islander athletes in a range of disciplines including athletics, AFL and Rugby League have used their sporting prestige to bring attention to Indigenous issues. Albanese could conceivably call on a range of beloved current and retired indigenous sports stars, such as Cathy Freeman, Adam Goodes or Ash Barty, to address this complicated issue.</p> <p>Many Australian sporting institutions, including the <a href="https://www.anocolympic.org/noc-highlights/australian-olympic-committee-approves-permanent-indigenous-voice-on-the-aoc-athletes-commission/" target="_blank" rel="noopener">Australian Olympic Committee</a>, already have committees devoted to including Aboriginal and Torres Strait Islander voices. But that would require Albanese to wade into the complexities of Indigenous politics in Australia rather than take advantage of a celebrity from America.</p> <div> <p>Polling shows many Australians <a href="https://www.abc.net.au/news/2022-05-04/indigenous-voice-to-parliament-vote-compass/101031774" target="_blank" rel="noopener">are already supportive </a>of an Indigenous Voice to parliament. Many in the public, as well as in Canberra, are wary of any decision made without appropriate consultation with Indigenous people and without clear language dictating the relationship between the Indigenous Voice and parliament.</p> <p><strong>This article originally appeared in <a href="https://theconversation.com/what-does-american-basketballer-shaquille-oneal-have-to-do-with-the-indigenous-voice-to-parliament-189533" target="_blank" rel="noopener">The Conversation</a>.</strong></p> <p><em>Image: Twitter</em></p> </div>

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Claims political parties are illegal deemed “obvious nonsense”

<p dir="ltr">The leader of the unregistered AustraliaOne Party has claimed that political parties are actually illegal under the Australian constitution - but experts have hit back, declaring his claims as false and “obvious nonsense”.</p> <p dir="ltr">In a video interview shared on Facebook and YouTube, Riccardo Bosi makes the claim that “parties are actually illegal under the constitution”.</p> <p dir="ltr">“Just because we have it doesn’t mean it’s legal… The constitution actually says you must direct the elector - that’s you, don’t call yourself a voter, call yourself an elector - the elector must directly elect their representative,” he says at around the four-minute mark of the nearly two-hour-long <a href="https://www.youtube.com/watch?v=XcNiPDmSymQ&amp;ab_channel=NUNN2K" target="_blank" rel="noopener">video</a>.</p> <p><span id="docs-internal-guid-2d78716f-7fff-296d-29cb-77ce4be09961"></span></p> <p dir="ltr">“Now, when you put a party in there, it has interposed itself between the elector and the representative, which is unconstitutional.”</p> <p dir="ltr"><img src="https://oversixtydev.blob.core.windows.net/media/2022/06/politics-whacko1.jpg" alt="" width="1280" height="720" /></p> <p dir="ltr"><em>Riccardo Bosi (right) says that political parties are unconstitutional in Australia. Image: YouTube</em></p> <p dir="ltr">Experts have since weighed in, with Professor Graeme Orr, an expert in electoral law at the University of Queensland, telling <em><a href="https://www.aap.com.au/factcheck/party-on-constitution-claim-judged-as-utter-nonsense/" target="_blank" rel="noopener">AAP FactCheck</a></em> that Mr Bosi’s claims were “obvious nonsense at many levels”.</p> <p dir="ltr">“The claim that political parties are illegal under the Australian Constitution is false,” Dr Ben Saunders, an associate professor at Deakin Law School, said, adding that “the constitution does not attempt to prohibit the existence of political parties in any way”.</p> <p dir="ltr">Professor Orr explained that Mr Bosi’s argument that “the elector must directly elect their representative” also has no bearing on whether political parties exist and that it refers to having elections.</p> <p dir="ltr">“‘Directly’ chosen simply means there must be an election with the names of possible MPs on the ballot,” he said.</p> <p dir="ltr">Mr Bosi’s claims come after he unsuccessfully stood for the seat of Greenway in western Sydney during May’s federal election, receiving just <a href="https://tallyroom.aec.gov.au/HouseDivisionPage-27966-122.htm" target="_blank" rel="noopener">3.25 percent</a> of votes.</p> <p dir="ltr">Under Section 15 of the constitution, which is the only part to explicitly mention political parties, it notes that if a senator leaves a vacancy and “he was publicly recognised by a particular political party as being an endorsed candidate of that party”, the person who fills that vacancy “shall… be a member of that party”.</p> <p dir="ltr">Citing this section, Professor Anne Twomey, a professor of constitutional law at the University of Sydney, told <em>AAP </em>it is “implausible to argue that political parties are illegal under the constitution”.</p> <p dir="ltr">Even Australia’s first Prime Minister, Edmund Barton, was a member of a political party called the Protectionist Party.</p> <p dir="ltr">Dr Saunders added: “Far from being illegal, the existence of parties was in fact a key assumption upon which our constitution was built.”</p> <p dir="ltr"><span id="docs-internal-guid-7cdd6b56-7fff-6547-4036-195040c6abd7"></span></p> <p dir="ltr"><em>Image: Getty Images</em></p>

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Changing the Australian Constitution is not easy. But we need to stop thinking it’s impossible

<p>Supporters of an Indigenous Voice to Parliament have celebrated the commitment of the new Albanese government to put the issue to a referendum. But is government support enough?</p> <p>It’s a start, but the road to referendum success is a hard one, as it was always meant to be.</p> <p><strong>The Constitution was meant to be hard to change</strong></p> <p>When the Constitution was being written in the 1890s, the initial expectation was that it would be enacted by the British and they would control the enactment of any changes to it, just as they did for Canada.</p> <p>But the drafters of the Commonwealth Constitution bucked the system by insisting they wanted the power to change the Constitution themselves. They chose the then quite radical method of a referendum, which they borrowed from the Swiss.</p> <p>While it was radical, because it let the people decide, it was also seen as a <a href="https://adc.library.usyd.edu.au/view?docId=ozlit/xml-main-texts/fed0043.xml&amp;chunk.id=&amp;toc.id=&amp;database=&amp;collection=&amp;brand=default" target="_blank" rel="noopener">conservative mechanism</a>. British constitutional theorist A.V. Dicey described the referendum as “the <a href="https://archive.org/details/nationalreview2318unse/page/64/mode/2up" target="_blank" rel="noopener">people’s veto</a>”, because it allowed the “weight of the nation’s common sense” and inertia to block “the fanaticism of reformers”.</p> <p>The drafters of the Commonwealth Constitution were divided on the issue. Some supported the referendum because it would operate to defeat over-hasty, partisan or ill-considered changes. Others were concerned that change was hard enough already, and voters would have a natural tendency to vote “No” in a referendum because there are always objections and risks that can be raised about any proposal. Fear of the new almost always trumps dissatisfaction with the current system, because people do not want to risk making things worse.</p> <p>In this sense, the referendum is conservative – not in a party-political sense, but because it favours conserving the status quo.</p> <p>Another concern, raised by Sir Samuel Griffith, was that constitutions are complex, and a large proportion of voters would not be sufficiently acquainted with the Australian Constitution to vote for its change in an informed way. He favoured using a United States-style of constitutional convention to make changes.</p> <p>The democrats eventually won and the referendum was chosen. But to satisfy their opponents, they added extra hurdles. To succeed, a referendum has to be <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coacac627/s128.html" target="_blank" rel="noopener">approved</a> not only by a majority of voters overall, but also by majorities in a majority of states (currently four out of six states).</p> <p><strong>A Constitution frozen in time</strong></p> <p>The predictions were right. The referendum at the federal level has indeed turned out to be the “people’s veto”. Of 44 referendum questions put to the people, only <a href="https://www.aec.gov.au/elections/referendums/referendum_dates_and_results.htm">eight have passed</a>. No successful Commonwealth referendum has been held since 1977. We have not held a Commonwealth referendum at all since 1999.</p> <p>There are many <a href="https://www.aph.gov.au/binaries/library/pubs/rp/2002-03/03rp11.pdf">suggested reasons</a> for this. Some argue that the people have correctly exercised their veto against reforms that were proposed for party-political advantage or to unbalance the federal system by expanding Commonwealth power. If reforms are put because they are in the interests of the politicians, rather than the people, they will fail.</p> <p>Questions asked in referendums have been poorly formulated and often load too many issues into the one proposed reform. If a voter objects to just one aspect of a proposal, they then vote down the entire reform.</p> <p>Another argument is that, as Griffith anticipated, the people know little about the Constitution and are not willing to approve changes to it if they are unsure. The mantra “<a href="https://www.aec.gov.au/elections/referendums/1999_referendum_reports_statistics/yes_no_pamphlet.pdf">Don’t know – Vote No</a>” was extremely effective during the republic campaign in 1999.</p> <p>Of course, if you don’t know, you should find out. But the failure to provide proper civics education in schools means most people don’t feel they have an adequate grounding to embark on making that assessment.</p> <p>Decades of <a href="https://www.aspistrategist.org.au/better-civic-education-will-help-australians-respond-in-challenging-times/">neglect of civics</a> has left us with a population that is insufficiently equipped to fulfil its constitutional role of updating the Constitution.</p> <figure class="align-center "><img src="https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=600&amp;h=451&amp;fit=crop&amp;dpr=1 600w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=600&amp;h=451&amp;fit=crop&amp;dpr=2 1200w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=600&amp;h=451&amp;fit=crop&amp;dpr=3 1800w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;h=566&amp;fit=crop&amp;dpr=1 754w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=754&amp;h=566&amp;fit=crop&amp;dpr=2 1508w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=754&amp;h=566&amp;fit=crop&amp;dpr=3 2262w" alt="" /><figcaption><span class="caption">If people have the slightest uncertainty about what they are saying ‘yes’ to, they will inevitably say ‘no’ – something the republic referendum suffered from in 1999.</span> <span class="attribution"><span class="source">Rob Griffith/AAP</span></span></figcaption></figure> <p><strong>Vulnerability to scare campaigns</strong></p> <p>The biggest threat to a successful referendum is the running of a “No” campaign by a major political party, or one or more states, or even a well-funded business or community group.</p> <p>Scare campaigns are effective even if there is little or no truth behind them. It is enough to plant doubt in the minds of voters to get them to vote “No”. Voters are reluctant to entrench changes in the Constitution if they might have unintended consequences or be interpreted differently in the future, because they know how hard it will be to fix any mistake.</p> <figure class="align-right "><img src="https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=237&amp;fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=600&amp;h=844&amp;fit=crop&amp;dpr=1 600w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=600&amp;h=844&amp;fit=crop&amp;dpr=2 1200w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=600&amp;h=844&amp;fit=crop&amp;dpr=3 1800w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;h=1061&amp;fit=crop&amp;dpr=1 754w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=754&amp;h=1061&amp;fit=crop&amp;dpr=2 1508w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=754&amp;h=1061&amp;fit=crop&amp;dpr=3 2262w" alt="" /><figcaption><span class="caption">The 1967 referendum was one of the few that were successful.</span> <span class="attribution"><span class="source">National Gallery of Australia</span></span></figcaption></figure> <p>If a referendum campaign ends up focused on technical issues about the future operation or interpretation of particular amendments, then it is likely lost.</p> <p>Campaigns tend to be more successful if they focus on principles or outcomes, such as the 1967 referendum concerning Aboriginal people. That referendum had the advantage of not being opposed in the Commonwealth parliament. The consequence was that there was only a <a href="https://www.naa.gov.au/learn/learning-resources/learning-resource-themes/first-australians/rights-and-freedoms/argument-favour-proposed-constitution-alteration-aboriginals-1967#:%7E:text=In%20the%201967%20referendum%2C%20no,recorded%20in%20a%20federal%20referendum.">“Yes” case</a> distributed to voters, as a “No” case can only be produced by MPs who oppose the referendum bill in parliament.</p> <p><strong>Overcoming the malaise</strong></p> <p>While recognising these difficulties, perhaps the greatest risk is becoming <a href="https://www.auspublaw.org/2018/12/getting-to-yes-why-our-approach-to-winning-referendums-needs-a-rethink/">hostage</a> to the belief the Constitution cannot be changed and referendums will always fail. It will become a self-fulfilling prophecy.</p> <p>Instead, we need to face constitutional reform as being difficult but achievable and worthwhile. The Constitution should always serve the needs of today’s Australians, rather than the people of the 1890s.</p> <p>The key elements for success include a widespread will for change, the drive and persistence of proponents, good leadership, sound well-considered proposals and building a broad cross-party consensus. Not every element is necessary, but all are helpful.</p> <p>As incoming Indigenous Affairs Minister <a href="https://www.abc.net.au/7.30/linda-burney:-%E2%80%9Cwe-need-consensus-on-a-referendum/13895144">Linda Burney</a> recently noted, there is still a lot of work to be done in building that consensus in relation to Indigenous constitutional recognition, but the work has commenced.<!-- Below is The Conversation's page counter tag. Please DO NOT REMOVE. --><img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/183626/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /><!-- End of code. If you don't see any code above, please get new code from the Advanced tab after you click the republish button. The page counter does not collect any personal data. More info: https://theconversation.com/republishing-guidelines --></p> <p><em><a href="https://theconversation.com/profiles/anne-twomey-6072">Anne Twomey</a>, Professor of Constitutional Law, <a href="https://theconversation.com/institutions/university-of-sydney-841">University of Sydney</a></em></p> <p><em>This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/changing-the-australian-constitution-is-not-easy-but-we-need-to-stop-thinking-its-impossible-183626">original article</a>.</em></p> <p><em>Image: Getty Images</em></p>

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Gaming or gambling: study shows almost half of loot boxes in video games constitute gambling

<div class="copy"> <p>The Australian Senate has <a href="http://trade-media.com.au/news/read/australian-senate-passes-motion-investigate-loot-boxes/">passed a motion to investigate</a> whether purchasable random rewards in video games (known colloquially as loot boxes) constitute a form of gambling and whether they are appropriate for younger players.  </p> <p>Our recent <a href="https://rdcu.be/ZXTg">paper</a>, which was cited in the senate motion, explores exactly these questions.</p> <p>We found that the loot boxes in almost half (45%) of the 22 games we analysed met the criteria to be considered psychologically similar to gambling, even though they are rated as appropriate for adolescent players under the age of consent for gambling.</p> <h2>What is a loot box?</h2> <p>Loot boxes are digital containers of randomised rewards, and are available in a number of video games.</p> <p>The box may contain rewards ranging from cosmetic items which alter the appearance of in-game characters to functional items that increase the player’s power in some way (for example a gun that fires faster or does more damage).</p> <p>In our research, we sought to answer two questions: are loot boxes like gambling and, if so, what should be done about it?</p> <p>First up, we want to clarify that video games are not evil.</p> <p>Games companies are not evil. Making money from video games is not evil.</p> <p>And playing video games with loot boxes is unlikely to result in young people flocking in great numbers to casinos.</p> <p>However, simultaneously, it may also be true that loot boxes represent a troubling and potentially inappropriate monetisation strategy, with the potential to cause short and long-term harm to some players.</p> <p>Our intent is to educate readers about loot box mechanisms, and promote a reasoned, evidence-based discussion about ethical practice in video games.</p> <p>Loot box rewards may be highly desirable or valuable (for example, a particularly valuable cosmetic item or very powerful weapon), or virtually useless and undesirable (items referred to as “vender trash”).</p> <p>Most importantly, the contents of the box are determined by chance.</p> <p>Some (but not all) loot boxes are purchasable for real money.</p> <p>In some cases, items earned from a loot box can also be “cashed out” for real world money.</p> <h2>The gambling problem</h2> <p>The problem is that spending real money on a chance outcome that results in some people “winning” and others “losing” is fundamental to gambling activities.</p> <p>Thus, we analysed the loot box features in 22 console and PC games released in 2016 and 2017, with a view to understanding how psychologically similar they were to gambling.</p> <p>We used five criteria to distinguish gambling from other risk-taking activities.</p> <p>These have been developed by Nottingham Trent University psychologist <a href="https://www.ntu.ac.uk/staff-profiles/social-sciences/mark-griffiths">Mark Griffiths</a> in his work on behavioural addictions and gambling disorders.</p> <p>To be considered psychologically similar to gambling, loot boxes must involve:</p> <ul> <li>an exchange of money or valuable goods takes place</li> <li>an unknown future event determines the exchange</li> <li>chance at least partly determining the outcome</li> <li>non-participation avoiding incurring losses</li> <li>winners gaining at the sole expense of losers.</li> </ul> <p>We took a reasonably strict interpretation of the final criterion; assuming that people only “won” if they gained some form of in-game competitive advantage (for example more powerful weapons).</p> <p>Arguably, this approach ignores the subjective value that might be created by the scarcity of, or player preference for, certain cosmetic items.</p> <p>However, it appeared to us to most closely resemble Griffiths’ intent.</p> <p>Loot boxes in just under half of the games (45%) met all five of Griffiths’ criteria and, thus, could be considered psychologically akin to gambling.</p> <p>All of the loot boxes operated on a variable ratio reinforcement schedule – a technical term for a reward given to a person on average every so many times they engage in a particular behaviour.</p> <p>This type of reward schedule results in people quickly learning new behaviours (for example buying loot boxes) and repeating them often in the hope of receiving a <a href="http://journals.sagepub.com/doi/full/10.1111/j.1467-9280.1990.tb00220.x">reward</a>.</p> <p>The strategy is effective because the next time a box is opened it might be the “big win”.  </p> <p>Perhaps most concerning was the fact that at least five of the games had mechanisms available to on-sell virtual items, allowing players to cash out their winnings (though four of these five had terms and conditions explicitly prohibiting this).</p> <p>The ability to cash out winnings is something that many consider a legal requirement for an activity to be considered gambling.</p> <p>Although the legality of loot boxes is a question for individual regulators and governments, exposure to mechanisms which closely mimic gambling in a psychological sense is concerning to us, especially since all of the games we examined were rated as appropriate for those under the age of consent for gambling.</p> <p>The short and long-term consequences of engaging with these mechanisms are unknown.</p> <p>Plausibly, short-term consequences may include overspending on loot boxes.</p> <p>The potential for long-term consequences also concerns us because males (a <a href="http://www.theesa.com/wp-content/uploads/2017/09/EF2017_Design_FinalDigital.pdf">particularly large group within gamers</a>) exposed to gambling when young are particularly at <a href="https://link.springer.com/article/10.1007%2Fs10899-008-9088-6">risk of developing problematic gaming behaviours</a>.</p> <h2>What to do about it</h2> <p>There is cause for hope. Electronic Arts (one of the largest game studios in the world) has recently announced the <a href="https://variety.com/2018/gaming/news/no-loot-boxes-anthem-1202838734/">removal of loot boxes</a> from upcoming titles.</p> <p>This suggests the games industry is taking consumer and expert feedback seriously, and may take steps to self-regulate.</p> <p>In our view, this is the optimal solution, given the diverse policy landscapes across the countries in which video games are sold.</p> <p>Where industry is not willing to self-regulate, and loot boxes are most similar to gambling, regulators may need to consider additional steps, although this should be undertaken selectively.</p> <p>Belgium and the Netherlands have <a href="https://www.eurogamer.net/articles/2018-04-25-now-belgium-declares-loot-boxes-gambling-and-therefore-illegal">declared at least some loot boxes to be illegal</a>, while the US and UK have decided that they are <a href="https://www.bbc.com/news/technology-43906306">not a form of gambling</a>.</p> <p>As noted above, the Australian Senate unanimously supported a vote on the 28th of June to refer an inquiry into the legality of loot boxes in video games to the <a href="http://trade-media.com.au/news/read/australian-senate-passes-motion-investigate-loot-boxes/">Environment and Communications References Committee</a>.</p> <p>Most importantly, we recommend that loot box mechanics should be added to content warnings to give users and parents the information they need to properly assess whether particular games are appropriate for themselves or their children.</p> <p>Ensuring that users can make well informed decisions about the appropriateness of content remains one of the strongest consumer defences.</p> <p>We hope that this work will form the basis for a well-reasoned, evidence-based policy discussion about ethical and sustainable practices in video games.</p> <p>Our intent is not to stigmatise games or gamers, but to spark a discussion about what mechanisms are and are not appropriate for particular audiences, games and the industry more broadly.</p> <p><em>Image credit: Shutterstock</em></p> </div> <div id="contributors"> <p><em>This article was originally published by <a rel="noopener" href="https://cosmosmagazine.com/people/social-sciences/gaming-or-gambling-study-shows-almost-half-of-loot-boxes-in-video-games-constitute-gambling/" target="_blank">cosmosmagazine.com</a> and written by The Conversation.</em></p> </div>

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South Australia will re-open its borders to some states but not others. Is that constitutional?

<p>In one relatively short section of the Australian Constitution, section 92, you will find this phrase:</p> <p><em>[…] trade, commerce, and intercourse among the states […] shall be absolutely free.</em></p> <p>You would think there is not much in it, but it turns out this section is one of the <a href="https://books.google.com.au/books?id=YHFCAgAAQBAJ&amp;pg=PA126&amp;lpg=PA126&amp;dq=s+92+Commonwealth+Constitution+most+litigated+section&amp;source=bl&amp;ots=RQLa3VdgZM&amp;sig=ACfU3U2Zd6akH39z3mNL9BFjq7WeHIXsyg&amp;hl=en&amp;sa=X&amp;ved=2ahUKEwivhK7TmIjqAhWDwjgGHYFVBm44ChDoATABegQIChAB#v=onepage&amp;q=s%2092%20Commonwealth%20Constitution%20most%20litigated%20section&amp;f=false">most litigated sections in the constitution</a>.</p> <p>Australians have taken a special interest in section 92 since mid-March. Debating the constitutionality of state border closures in response to COVID-19 seemed to be trending with everyone staying home to help flatten the curve.</p> <p>Legal challenges on border closures are already underway <a href="https://www.canberratimes.com.au/story/6790345/qld-border-challenges-likely-to-be-delayed/?cs=14231#gsc.tab=0">in the High Court</a>, with arguments of its constitutionality.</p> <p>Now, this interest in section 92 is being rekindled with the <a href="https://www.abc.net.au/news/2020-06-16/sa-borders-reopen-to-travellers-from-wa-nt-and-tasmania/12359514">partial re-opening of borders</a> between South Australia, Western Australia, the Northern Territory and Tasmania.</p> <p>With Australia being one country, it was hard enough to accept it is constitutional for states to close their borders, but now South Australia seems to be offering travellers from these states and the territory special treatment.</p> <p>West Australian Premier Mark McGowan has more recently suggested the partial opening of borders may be <a href="https://www.abc.net.au/news/2020-06-16/premier-mark-mcgowan-stands-firm-on-hard-border-as-sa-opens/12359602">unconstitutional</a>. Is it?</p> <p>The issue is not the partial opening of borders. It is the rationale for these actions.</p> <p>When South Australia announced this partial re-opening, it also indicated it plans to open its borders to all remaining states by July 20. The issue then is whether South Australia’s discrimination against New South Wales, Victoria and Queensland can be justified by efforts to prevent a second wave of COVID-19 deaths.</p> <p>Since 1988, the High Court has interpreted section 92 as prohibiting discrimination of a protectionist kind – that is to say, the section prevents states from passing legislation to restrict trade. In the 1988 case of <a href="https://lawcasesummaries.com/knowledge-base/cole-v-whitfield-1988-165-clr-360/">Cole v Whitfield</a>, the High Court, in a unanimous decision, upheld Tasmanian regulations prohibiting a person from taking, buying or selling crayfish of less than a prescribed size, whether or not taken in Tasmanian waters.</p> <p>In the course of his interstate trade, David Whitfield brought crayfish from South Australia to Tasmania for the purpose of sale to mainland and overseas markets. The crayfish were less than the prescribed size under the Tasmanian regulations, though above the prescribed size under comparable regulations in South Australia. The court explained in the decision that the legislation was not protectionist in nature. It was intended to help protect Tasmanian crayfish rather than restrict trade. The court elaborated in the following terms:</p> <p><em>[D]iscrimination commonly involves the notion of a departure from equality of treatment. It does not follow that every departure from equality of treatment imposes a burden or would infringe a constitutional guarantee of the freedom of interstate trade and commerce from discriminatory burdens […]</em></p> <p>As was the case when all states decided to close their borders, the legal issue is whether the purpose of the closures is to restrict trade or to help protect the citizens of each state from becoming infected with COVID-19.</p> <p>The orthodox view among Australian constitutional jurists is that <a href="https://auspublaw.org/2020/06/border-closures-covid-19-and-s-92-of-the-constitution/">section 92 does not allow</a> for a balancing exercise between the competing interests of free trade and combating a pandemic. This might well be a question for the High Court to elaborate on when deciding the legal challenges brought against the Queensland government.</p> <p>At a different analytical scale, the issue is not the interpretation of section 92, but rather the effect of crises on the interpretation of our constitution.</p> <p>This interpretation is not impervious to pandemics or other crises. We see this in what are known as purposive powers, such as the <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html">defence power in section 51</a>. In times of war, the core of this power will expand to equip the Commonwealth with the type of intervention necessary to keep Australia safe. There is no reason this rationale would not extend to pandemics.</p> <p>Enter the principle of subsidiarity. <a href="https://www.monash.edu/__data/assets/pdf_file/0007/768490/05_Gussen.pdf">Elsewhere</a>, I have argued the Commonwealth Constitution is superior to the Canadian and US constitutions, because it is more efficient. It allows for a wider area of concurrent powers. Our federal model is more agile, in the spirit of true subsidiarity, with its rules of assistance, non-interference and helping states acquire more competencies over time.</p> <p>It is this principle of subsidiarity that holds the key to understanding the constitutionality of border closures and partial re-opening in response to the coronavirus pandemic. The states are best positioned to judge what intervention will work best in their case.</p> <p>In the time of crises, no one size fits all.</p> <p><em>Written by Benjamin Franklen Gussen. Republished with permission of <a href="https://theconversation.com/south-australia-will-re-open-its-borders-to-some-states-but-not-others-is-that-constitutional-140934">The Conversation.</a> </em></p>

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The Australian Constitution does not protect our rights

<p>The <a href="https://www.sydneycriminallawyers.com.au/blog/the-afp-press-raids-towards-a-totalitarian-state/">AFP raids</a> last year brought the issue of press freedoms front and centre. The bushfires led to heated debate over the potential for <a href="https://www.sydneycriminallawyers.com.au/blog/while-a-successful-climate-class-action-is-unlikely-the-courts-have-a-role-to-play/">a class action</a> against the government’s climate inaction. And concerns over the right to privacy have been ongoing since the <a href="https://www.sydneycriminallawyers.com.au/blog/rip-privacy-mass-surveillance-to-be-ramped-up-in-nsw/">1980’s push for the Australia card</a>.</p> <p>Often, as these political debates are raging on social media, you’ll come across a comment that suggests the Australian Constitution protects citizens’ rights, and the government is simply failing to uphold them.</p> <p>But the fact is this isn’t the case. It’s rather an idea popularised by the heavy cultural saturation the US media has had upon Australia in recent years. <a href="https://billofrightsinstitute.org/founding-documents/bill-of-rights/">Since 1791</a>, the United States has had a bill of rights which protects the freedoms of its citizens, and is enshrined in The US constitution and the amendments to that document.</p> <p>By contrast, this nation’s founding document does not contain a bill of rights, and only provides protection for a handful of freedoms. And unlike all other western democracies, Australia is the only such country without a human rights act to provide individuals with freedoms and legal safeguards.</p> <p>This means government can pass laws without considering whether they infringe upon citizens’ rights; without worrying about legal consequences. And this is what’s been happening for many years now.</p> <p><strong>Threadbare protections</strong></p> <p>Amongst the lawmakers that drafted the Australian Constitution, there was debate over whether a bill of rights should be contained in the document. But when it was put to the vote, the proposal lost out with <a href="http://www.lawfoundation.net.au/ljf/app/&amp;id=/A60DA51D4C6B0A51CA2571A7002069A0">19 votes for and 23 against</a>.</p> <p>As noted by the Queensland chapter of the Young Presidents Association in 1997, the reason it didn’t fly was <a href="http://www.lawfoundation.net.au/ljf/app/&amp;id=/A60DA51D4C6B0A51CA2571A7002069A0">because of fears</a> that rights protections would undermine a number of discriminatory laws that were in place at the time, which primarily disadvantaged First Nations people and Chinese residents.</p> <p>So what was left was just <a href="https://www.sydneycriminallawyers.com.au/blog/should-australia-have-a-bill-of-rights/">five rights</a> which are explicitly guaranteed by our Constitution. <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s41.html">Section 41</a> provides of the document guarantees the right to vote. The protection of property against acquisition on unjust terms is protected by <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html">subsection 51(xxxi)</a> of the document.</p> <p>The right to a trial by jury is contained in <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s80.html">section 80</a>; but it should be noted that over the years, the courts have found that this right only extends to trial by indictment; in other words, trials in the higher courts such as the District and Supreme Courts. Freedom of religion is protected under <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s116.html">section 116</a> of the document, while <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s117.html">section 117</a> prohibits discrimination based on state of residency.</p> <p>In addition to these explicit rights, the High Court found in the 1992 case of <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/45.html">Australian Capital Television versus the Commonwealth</a> that, taken together, sections <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s7.html">7</a> and <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s24.html">24</a> of the Constitution <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp10">imply a qualified right of political communication</a>.</p> <p>Th ABC case enabled former Australian Greens leader Bob Brown to successfully challenge 2014 anti-protest laws that had been passed in Tasmania. Indeed, the High Court <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/43">reasoned in October 2017</a> that these laws contravened the <a href="https://www.sydneycriminallawyers.com.au/blog/high-court-rules-that-anti-protest-laws-are-unconstitutional/">implied right of political communication</a> by deterring protesters.</p> <p><strong>Checking in with authorities</strong></p> <p>Former <a href="https://www.nswccl.org.au/">NSW Council of Civil Liberties</a> president Stephen Blanks <a href="https://www.sydneycriminallawyers.com.au/blog/its-time-for-an-australian-bill-of-rights/">told Sydney Criminal Lawyers</a> in 2017 that “one of the problems with the Australian legal system now is that if people’s human rights are infringed” the only recourse is to “make a complaint to the Australian Human Rights Commission”.</p> <p>Mr Blanks advocates for the establishment of a federal human rights act. He sees this an interim measure, prior to the amendment of the Constitution, so that it incorporates a rights protection bill within it. Amending the US Constitution is what happened with the bill of rights over there.</p> <p>Constitutional law expert UNSW Scientia Professor George Williams explained <a href="https://www.sydneycriminallawyers.com.au/blog/the-need-for-a-bill-of-rights-an-interview-with-unsw-professor-george-williams/">in November 2017</a> that the need for Australian human rights protections has become more urgent since the government set about passing multiple rights eroding national security bills post-9/11.</p> <p>The professor explained that compared to nations with rights protections – such as the US and the UK – Australia has passed a much greater volume of national security-counterterrorism laws that “go further”. And the number of these sorts of bills that have been passed at the federal is up around 80.</p> <p>At the moment, the <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr6404%22">Australian Bill of Rights Bill 2019</a> is sitting before federal parliament. It was introduced by federal MP Andrew Wilkie. And it’s the second such rights protection bill the independent member has tabled over the past few years.</p> <p>“The value of a bill of rights has become more important, because of the increasing power of the state,” Mr Wilkie <a href="https://www.sydneycriminallawyers.com.au/blog/australia-needs-a-bill-of-rights-an-interview-with-mp-andrew-wilkie/">said in 2017</a>, just after he introduced the first bill. “And many people feel that their rights have been eroded on account of laws that have been passed by a range of governments.”</p> <p><strong>A case in point</strong></p> <p>Concerns have long been raised around <a href="https://www.sydneycriminallawyers.com.au/blog/bikies-charged-under-controversial-consorting-laws/">NSW consorting laws</a> that were passed in 2012. This occurred initially as they were introduced, as well <a href="https://www.vice.com/en_au/article/yvxa57/an-analysis-of-all-the-shitty-laws-introduced-by-the-nsw-government-since-2011">as a few years later</a> when NSW Greens MLC David Shoebridge released statistics that revealed the biased way in which these laws had been applied.</p> <p><a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s93x.html">Section 93X</a> of the Crimes Act 1900 (NSW) makes it an offence for an individual to communicate with at least two convicted criminals, after they’ve been warned not to by police. And an offender doesn’t have to have fallen short of the law in the past, and they can be sent away for up to 3 years.</p> <p>In 2014, three men who’d been charged under these laws challenged their validity in the High Court, arguing that they impinged upon the implied right of association in the Constitution. However, the court <a href="https://www.sydneycriminallawyers.com.au/blog/the-need-for-a-bill-of-rights-an-interview-with-unsw-professor-george-williams/">dismissed the appeal</a>, as it found that no such right exists under Australia’s federal law.</p> <p><strong>What the bloody hell is Morrison up to?</strong></p> <p>“So long as the agenda is driven by people whose interest is primarily power, rather than the public good,” Blanks explained, “it’s very difficult to get a coalition in favour of human rights legislation.” Indeed, the current federal system sees rights eroding bills swept through <a href="https://www.sydneycriminallawyers.com.au/blog/eroding-our-civil-liberties-is-a-bipartisan-move/">with bipartisan support</a>.</p> <p>And at present, we’ve got a prime minister who’s trying to ram through legislation that aims to uphold one right over all others. And this is one of the few rights that’s already provided protection under the Constitution: the right to freedom of religion.</p> <p>Scott Morrison’s pet project – the <a href="https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills-second-exposure-drafts.aspx">Religious Discrimination Bill 2019</a> – doesn’t <a href="https://www.sydneycriminallawyers.com.au/blog/australia-needs-a-bill-of-rights-not-religious-freedom-to-discriminate/">simply aim to guarantee</a> religious freedoms, but it also undermines both federal and state anti-discrimination frameworks that have been built up since the 1970s, if a breach is conducted in the name of faith.</p> <p>And while many are confused as to why our PM is prioritising religion at this point in time, one thing is certain, and that is there’s no federal legislation guaranteeing citizens’ rights that the “bigots’ bill” can be weighed up against to see if it infringes upon the rights of minorities, as it certainly does.</p> <p><em>Written by Paul Gregoire and Ugur Nedim. Republished with permission of <a href="https://www.sydneycriminallawyers.com.au/blog/the-australian-constitution-does-not-protect-our-rights/">Sydney Criminal Lawyers.</a> </em></p>

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“Get on with it”: Politicians urged to recognise Aboriginal people in the Australian Constitution

<p>During Monday night’s discussion on<span> </span><em>Q&amp;A</em>, the topic of whether or not Aboriginal people should be recognised in the Australian Constitution was discussed.</p> <p>At times during the debate, views were sometimes split on whether or not establishing a First Nations Voice that’s enshrined in the Constitution would be effective as well as it being what Aboriginal people want.</p> <p>Sally Scales was on the panel and is a delegate that helped develop the Uluru Statement of the Heart. She is calling for constitutional recognition and said that she wants to see this implemented, despite statements from the Minister for Indigenous Australians Key Wyatt ruling out the possibility.</p> <p>“We’ve compromised so much already … so why do we have to keep compromising?” Ms Scales said.</p> <p>“We put a beautiful statement which was done by about 250-odd First Nations representatives. It was given to the Australian public, not to parliament, not to politicians.</p> <p>“The law is not the problem around the Uluru statement, I think politics is the problem.”</p> <p>Jacinta Price, a Liberal candidate for the Northern Territory seat of Lingiari and director of the Indigenous program at the Centre for Independent Studies said that the statement lacks significant detail about how the voice in the Constitution would function and who the Aboriginal representatives would be.</p> <p>“The media like to portray indigenous people as all having one voice,” she said. “We need to be recognised as individuals as well, that we don’t all think with one head.”</p> <p>Price also pointed out that there are bureaucracies in place that are voices for Indigenous people.</p> <p>“If they’re not doing a good job now then how do we know that this voice is going to do that job?”</p> <p>However, Price agreed with recognising the Aboriginal people as the original inhabitants of the land but having the voice constitutionally enshrined would mean that Aboriginal people would be forever disadvantaged.</p> <p>“We are Australian citizens and we are often looked at separately to everybody else in this country, it shouldn’t be the case,” she said.</p> <p>“We want to be part of the fabric of this country like everybody else.”</p> <p>One audience member named Bill didn’t agree with Price.</p> <p>“Jacinta, the way you talk, that sounds like a Liberal Government standing behind you and you’re turning around and talking for them,” he said.</p> <p>“You’re not talking for the rest of the people.”</p> <blockquote class="twitter-tweet" data-lang="en"> <p dir="ltr">How can the panel convince Bill that an Indigenous Voice to Parliament would give those in the community a right to be heard, and not just “symbolic representation”? <a href="https://twitter.com/hashtag/QandA?src=hash&amp;ref_src=twsrc%5Etfw">#QandA</a> <a href="https://t.co/2p5sTr3HKU">pic.twitter.com/2p5sTr3HKU</a></p> — ABC Q&amp;A (@QandA) <a href="https://twitter.com/QandA/status/1163423702127525888?ref_src=twsrc%5Etfw">August 19, 2019</a></blockquote> <p>She was quick to hit back saying:</p> <p>“Just because my views are probably different to yours, doesn’t mean I can’t think for myself as an Aboriginal woman”.</p> <p>“I form my own views based on my own lived experience.”</p> <p>Bill said that he was tired of “symbolic” gestures.</p> <p>“What I’d like to see is both sides of politics get their act together, start moving the thing along because this is just (taking) too long,” he said.</p>

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