Constitution Amendment (Fracking Ban) Bill 2020
Ms PATTEN (Northern Metropolitan) (14:48:218:): Thank you, Mr Limbrick. I actually feel like I understand a few things better as a result. I cannot say that I necessarily agree with Mr Limbrick in his assessment, but I certainly listened with interest to that contribution. He is absolutely right, and, as Ms Watt says, it is not very common that we come in here to debate a constitutional amendment, to debate changing our constitution. Certainly entrenchment in statutory law like this means we will need a full majority to do this, but it does not mean that it cannot be taken away, as we know. But this bill is about entrenching the fracking bans into the constitution. As we know, as this amends section 18(2), it does need a special majority.
Entrenchment is dealt with in section 6 of the Australia Act 1986, which Mr Limbrick mentioned, which posits that:
… the constitution, powers or procedure of the Parliament of the State …
In this context ‘the constitution’ means how the Parliament is constituted—for example, how many houses it has. Mr Limbrick mentioned Professor Anne Twomey, and while she believes quite rightly that introducing fracking into the constitution will be legally valid, its entrenchment would not be. I think that is where Mr Limbrick’s debate here is. It could be removed very easily by a simple majority, but it is unlikely that it will be. It is very unlikely because everyone is in furious agreement about the permanent prohibition on fracking in this country.
I could be concerned, and certainly when thinking about this it did give rise to concern about whether this was setting a dangerous precedent and whether we would see things like mandatory sentencing entrenched into our constitution, but—and I think it was Professor Twomey who actually helped me on this—it was not that I did not need to be concerned about this but that bad laws could be removed relatively easily. This was actually quite a revelation to me. I had no idea that the constitution was actually that malleable—because it has been so rare that we have seen changes to the constitution—and that actually you can introduce things into the constitution and you can take them away. I am sure Mr Limbrick and I are on the same line—that if there was something around decriminalising all drugs put into the constitution, he and I would possibly agree with the idea of decriminalising all drugs but certainly he would not like to see it in the constitution, and it never would have occurred to me to put it in there until today. So it has really opened up a whole lot of ideas, but I suspect now is not the time.
I take up Mr Limbrick’s notion that we would be governed from the grave because of this entrenchment into our constitution. As Professor Twomey says, it is actually very easy to remove these entrenchments in our constitution, which does then pose the question: why are we doing it? However, I accept—and I have been saying this, and I think I was saying it an awful lot yesterday—I am not the opposition. I respect that the government actually went to the 2018 election with the policy that they would in some way entrench the prohibition of fracking in this state. So I am not going to oppose this.
I think it is interesting that the only other example in the Victorian constitution that we have on this is water services. I understand that the Liberals and The Nationals are also not opposing this bill. In fact I understand that the Nats and the Greens may even be taking credit for this.
Mr Bourman interjected.
Ms PATTEN: Who’s on first?
When we look at something like the water services, which is the only other time that we have seen an entrenchment into our constitution, that has never been removed. No successive governments have found a need to do it. No Independents have found that that entrenchment in our constitution was so appalling that it needed to be removed. I think what I am quite comfortable in is the fact that we all, or almost all of us, probably, are in furious agreement that there should be a ban on fracking in Victoria. This may be an example of a policy that is worthy enough to test those constitutional limits of our Parliament. I will be interested to see the commentary on this, because I suspect this bill will get the majority vote that it needs to pass and to change the constitution, so I will read with interest the academics’ views on this.
But I think what we do know is that we have the ability to do it, which is something I was not aware of, but we also equally have the ability to remove it. So therefore entrenchment seems to be a fairly strong word for what we are doing here because future governments actually could take it away. But I do not oppose this bill.