[1989] Reform 10 precise definitions of who is an insider, what automated trading system at the Australian is an illegal insider trade and the penalties to Stock Exchange would help in detecting in be incurred, and only when the conduct com sider trading. However, he said that no mat plained of is illegal in both countries. Mr ter how much technology one had, there was Lynch said that there had been cases where still a need for people involved in insider the Swiss authorities had been asked by the trading to confess and implicate others. SEC for help on insider trading and they had agreed on the basis that the conduct com The effectiveness of the Australian system plained of was a breach of both countries’ in of securities regulation in dealing with in sider trading laws. While this showed that sider trading will be revealed by the outcome there were differences in principle at the of the cases being conducted by the NCSC. practical level, he said that those differences * * * were being resolved and the systems of se curities legislation were actually converging at a rapid rate. the australian constitution The Australian Government has re strained the NCSC from reaching a bilateral Arthur: You don’t vote for kings. agreement with the SEC under which the Old woman: Well, how do you become king, then? agencies would have been obliged to help Arthur: The Lady of the Lake, her arm clad each other to the limits of their existing pow in the purest shimmering samite, ers on request and seek legislation enabling held aloft Excalibur from the bos them to use their ‘compulsory’ powers to om of the water signifying by Div subpoena witnesses and documents on each ine Providence that I, Arthur, was other’s behalf. The Commonwealth feared to carry Excalibur. . . that is why I that such a binding agreement would com am your King. promise national sovereignty and should in Dennis: Listen, strange women lying in any case be made between governments, not ponds distributing swords is no statutory agencies (AFR, 21 November 1988). basis for a system of government. In the US, on the other hand, an Act giving Supreme executive power derives from a mandate from the masses the SEC powers to provide assistance to not from some farcical aquatic cer other supervisory authorities in their US in emony. vestigations of suspected infringements of foreign security laws was signed by President Monty Python and the Holy Grail (Monti Python ik den Holie Gràilen) Reagan in December (AFR, 3 January 1989). The possibility of co-operating on insider In the wake of the rejection of the four trading investigations has been raised by the referendum proposals put forward by the chairman and chief executive of the New federal Government in September 1988 (see York Stock Exchange, Mr John Phelan Jnr. [1988] Reform 183—6), the final Report of the At a press conference in Sydney, Mr Phelan Constitutional Commission was tabled in said that the communications between the federal Parliament on 20 October 1988. The New York Stock Exchange and other ex Commission consisted of Sir Maurice Byers changes in the United States and other mar (Chairman), Professor Enid Campbell, Hon kets around the world made the detection of Sir Rupert Hamer, Hon EG Whitlam and insider trading more feasible today than it Professor Leslie Zines.The Report does not was in the past (AFR, 22 November 1988). take into account the results of the referen On the other hand, he conceded that, world dums. Despite the apparently unfavourable wide, it is very difficult to detect because climate for constitutional reform, the Report everyone has a different definition. Mr deserves careful consideration by the electors Phelan commented that he believed that the of Australia. Each of the Commission’s rec [1989] Reform 11 ommendations is supported by detailed con same as the method for choosing sena sideration of the competing arguments and tors. the constitutional provisions of other coun • Section 25 of the Constitution should be tries. repealed. That section provides that persons of a particular race resident in a elections. The Commission recommended State shall not be counted for the pur that certain principles relating to democratic pose of providing the number of mem rights should be embodied in the Constitu bers of the House of Representatives if tion. by the law of the State persons of that race are disqualified from voting at the • The laws prescribing qualifications of State elections. Although the section is electors for federal and State Parlia based on a section of the US Constitu ments and legislatures of Territories tion intended to encourage the States to should provide for enfranchisement of enfranchise the emancipated blacks af every Australian citizen who has at ter the Civil War by reducing the feder tained the age of 18 years. The laws al representation of the States which should be able to make entitlement to failed to do so and thus has a benign vote dependant on compliance with purpose (not, as some have thought, a reasonable conditions as to residence or purpose of permitting apartheid), the enrolment for voting. They should also Commission concluded that it is no be able to provide for the disqualifica longer appropriate to have a constitu tion of persons who are incapable of tional provision which contemplates the understanding the nature and signifi disqualification of members of a race cance of enrolment and voting by from voting. reason of unsoundness of mind or who • The Constitution should include a spe are in prison. Although the Commission cific provision for electors to have acknowledged that an offender, once standing to sue for an appropriate legal punished under the law, should not remedy where their rights under the incur the additional penalty of loss of proposed sections on qualifications of the franchise, it said that it could not be electors have been infringed. assumed that that view would be gener ally shared and legislatures should composition of federal parliament. At pres therefore be able to make such laws in ent, the size of the House of Representatives relation to prisoners as they saw fit. • and the size of the Senate are linked. The ratio between the numbers of members of the • Each elector shall vote only once. The House and the number of senators must be, principle of one vote one value for fed as nearly as practicable, 2:1. While acknowl eral, State and Territory elections edging the failure of the 1967 referendum to should be included in the Constitution. break the nexus between the size of the two This would require the number of en Houses, the Commission considered that rolled electors in electoral divisions not there was no necessary relationship between to vary by more than 10% above or be the size of the House of Representatives and low the relevant quota prescribed for the size of the Senate and recommended that that division or, in the absence of an ap the nexus be broken. The role and function of plicable law or where the State electoral the two houses are different. The members of divisions do not comply with the pre the House of Representatives are elected on scribed quota, the State should be one the basis of population and are required to electorate and the method of choosing perform constituency work in their own elec members of a House of a legislature torates. As the population increases, the size should be as nearly as practicable the of electorates increases and the workload of [1989] Reform 12 members becomes heavier. An increase in the would hold their places for one term of the size of the House may therefore be consid House. The polling day for election of Sena ered desirable. On the other hand, the Senate tors and election of Members of the House is elected on the basis of equal representation should be the same day. In view of the fixed of States rather than on the basis of popula minimum term of three years for the Parlia tion. The Commission addressed concerns ment, the Commission also recommended about the size of Parliament by recommend that if, within the first three years of a Parlia ing that the number of people represented by ment, the Senate rejects or fails to pass a a member of the House of Representatives money Bill within 30 days of its transmission shall be not fewer than 100 000, subject to the from the House, the Bill must be presented existing guarantee that each Original State for the Royal assent. If the Senate rejects or shall have at least 5 members and subject to fails to pass such a Bill in the fourth year of a Territories being entitled to a representative Parliament, a double dissolution would be in the House when its population exceeds permitted. The Commission recommended 50 000. The Commission also recommended that double dissolution of Parliament follow that electors of a Territory that is not entitled ing the second rejection of a Bill, other than a to be represented in Parliament should be en money Bill, by the Senate should only be per titled to vote at an election of Senators or mitted in the fourth year of the term of the Members of the House for a Territory on the House of Representatives. Where a proposed mainland of Australia. The Commission rec law is presented to a joint sitting of Parlia ommended that the number of senators ment following a double dissolution, the law should be fixed at 12 for Original States. In should be taken to have been duly passed by the case of new States and Territories, there both Houses of the Parliament only where it should be an entitlement to one senator for has been affirmed by a special majority of every two members who can be elected to the members at the joint sitting. The special ma House provided that new States, the Austral jority would consist of an absolute majority ian Capital Territory and the Northern Terri of the total number of members of both tory should be entitled to representation by at Houses and at least half of the total number least two, but no more than 12, senators. of Senators and Members chosen for or in a particular State, in at least half of the States. terms of federal parliament and relation The special majority requirement is recom ship between the houses. The Commission mended to address the possible concern makes several interconnected recommenda which may arise in relation to the position of tions in relation to terms of federal Parlia the less populous States which are more ment and the powers of the House of Repre strongly represented in the Senate than in the sentatives and the Senate. It recommended House if the nexus between the size of the that the maximum term of the House of Rep two Houses is broken. resentatives should be four years. However, unlike the proposal which was defeated at the executive government. The Commission referendum in September, the Commission made a number of recommendations in rela recommended that the House should not be tion to the executive branch of the Common dissolved within three years of its first meet wealth. ing after a general election unless the House has passed a resolution expressing a lack of confidence in the Government and no gov • The power of the Sovereign to disallow ernment can be formed from the existing acts of the federal Parliament should be House. Senators for States would hold their abolished as should the power of the places for two terms of the House of Repre Governor General to reserve Bills sentatives (except in the event of a double passed by the Parliament for the Sover dissolution) and Senators for Territories eign’s personal assent. [1989] Reform 13 • There should be no alteration of the • The Governor-General should be able Constitution which would affect the to appoint deputies without having to position of the Queen as head of State be authorised to do so by the Sovereign. of Australia. The power of the Sovereign to exercise control over the Governor-General as • The office of Prime Minister should be regards the powers and functions as specifically recognised in the Constitu signed to deputies should also be re tion. moved from the Constitution. • The Governor-General should not be judicial system. The Commission rejected able to dismiss a Prime Minister unless any alteration to the Constitution to provide the House of Representatives resolves for the integration of the court systems of the that it does not have confidence in the Commonwealth and the States. It considered Government, although the Governor- that there should be one Parliament and one General would have a discretion, to be Government politically responsible for the exercised in accordance with the prin establishment, maintenance, organisation ciples of responsible Government, in se and jurisdiction of, and appointments to, a lecting the person to hold the office of court. It concluded that the conflict of juris Prime Minister. Sir Rupert Hamer dis diction difficulties that can still arise do not sented from this recommendation. He in themselves warrant a change of the magni considered that the four ‘reserve pow tude that would result from the establishment ers’ in reliance upon which the of an integrated national court structure. It Governor-General could act without, or also thought it desirable to wait to examine contrary to, ministerial advice, namely the effectiveness of the legislation relating to the appointment of the Prime Minister, the cross-vesting of jurisdiction. In relation the dismissal of the Prime Minister, dis to cross-vesting, the Commission recom solution of the House of Representa mended that a specific power permitting tives and a double dissolution, should State and Territory legislatures with the con not be excluded in the way proposed by sent of the federal Parliament to confer State the majority of the Commission. and Territory jurisdiction respectively on the federal courts be enacted. This was because, • The Constitution should provide for the although there is no problem with federal leg appointment of Assistant Ministers. islation vesting federal jurisdiction in the State courts (this is permitted by s77(iii) of • The membership of the Federal Execu the Constitution) there is no express pro tive Council should be limited to the vision giving the States power to confer State Prime Minister, Ministers and Assistant jurisdiction on federal courts. The Commis Ministers of State for the Common sion considered that, in view of the technical wealth for the time being. At present, legal arguments giving rise to doubt as to the Ministers who have been sworn in as validity of the cross-vesting scheme, there executive councillors continue to be should be a constitutional amendment to re members of the Council even when they move the uncertainty. have ceased to hold ministerial office al though once that has happened, they removal of judges. The Commission rec are no longer summoned to attend ommended a constitutional provision for a meetings. • Judicial Tribunal to determine whether facts established by it are capable of amounting to • The Constitution should be altered to proved misbehaviour or incapacity warrant make it clear that most of the powers ing removal of a judge. The Tribunal would vested in the Governor-General are ex consist of persons who are judges of a federal ercisable only on ministerial advice. court (other than the High Court) or of the [1989] Reform 14 Supreme Court of a State or of a Territory. considered that the case in relation to such An address to the Governor-General in Bills was in another sense weaker. A State or Council by both Houses of Parliament asking the Attorney-General of a State has standing for removal of a judge on the ground of to challenge all, or practically all, federal leg proved misbehaviour or incapacity would islation or executive acts. The Common not be able to be made unless the Judicial wealth probably has similar standing in re Tribunal had reported that the facts were spect of State laws and executive action in re capable of amounting to misbehaviour or in lation to the Constitution. Furthermore, it is capacity warranting removal and the address not always the case that all possible grounds of each House was made no later than the of constitutional challenge are present to the next session after the report of the Tribunal. mind when an Act is passed. The Commis The Commission recommended that the pro sion did not accept that the Court could be cedure for removal of federal judges should capable of answering all questions in such a have a parallel at State level so that the judge way that constitutional challenges could not of a superior court of a State or self- arise in the future. However, the Commission governing Territory would not be removed recommended one exception to its general except after a finding by the Judicial Tribunal recommendation on advisory jurisdiction. It and a request by the Parliament. considered that the Governor-General in Council, the Governor in Council of a State advisory jurisdiction. The Constitutional or the Administrator in Council of a Terri Commission recommended that the High tory should be able to refer to the High Court Court not be invested with advisory jurisdic a question of law relating to the manner and tion either generally or in respect of matters form of enacting any proposed law. The sort of constitutional validity. The Commission of difficulty which such an advisory jurisdic acknowledged that the conferring of advisory tion would address is illustrated by the jurisdiction relating to constitutional ques double dissolution of 1974. That double dis tions had wide support, in particular two res solution was granted in respect of the six Bills olutions of the Australian Constitutional which it was thought had complied with the Convention, a Report of the Senate Standing procedures laid down in s57. The High Court Committee on Constitutional and Legal Af later held that the procedures had not been fairs and the Constitution Alteration (Advi complied with in the case of one of those sory Jurisdiction of the High Court) Bill 1983 Bills. If that Bill had been the only one relied which was passed by both Houses of the Fed upon by the Governor-General in dissolving eral Parliament but not put to a referendum. both of the Houses, the Senate would have The Commission regarded the possibility of been wrongly dissolved. A question would be requesting the High Court’s advice before a raised as to whether the subsequent election Bill had been debated on policy grounds and was void. Although the High Court has ex passed by both Houses as raising particular pressed the view that the validity of the dis problems. Although it acknowledged that an solution and therefore the election could not authoritative opinion on the validity of a Bill have been challenged, at any rate where the would have advantages from the Govern action was brought after a proclamation of ment’s point of view, it would be an unde dissolution, the Commission considered that sirable fetter on the political and legislative a matter should be able to be referred to the processes. A member of Parliament who High Court for an opinion where otherwise it wished to move an amendment could be met might be too late to do so. with the argument that it would risk upsetting the finding of validity made by the Court. Al inter-state commission. Section 101 of the though advisory opinions for Bills which had Constitution provides that there shall be an passed through the legislative process did not Inter-State Commission with such powers of suffer from the same defects, the Commission adjudication and administration as the Par [1989] Reform 15 liament deems necessary for the execution Capital Territory). The Constitutional Com and maintenance of the provisions of the mission therefore recommended that altera Constitution relating to trade and commerce tions should be made to clarify this matter and the laws made in relation to the constitu and that the Constitution should also provide tional power. The Constitutional Commis for the number of members of the House of sion recommended that Parliament should Representatives and the Senate to which a have power to authorise a court to request the new State would be entitled. Inter-State Commission to enquire into and local government. The Commission rec report on any fact relating to trade and com ommended that a new section be added to the merce that is relevant to a matter that arises Constitution to require States to provide for under the Constitution or involves its inter the establishment and continuance of local pretation. The question whether a statutory government bodies. The Commission consid provision is valid under the Constitution may ered that, in view of the wide range of ser depend upon the existence of certain social, vices which local government now provides economic or technical facts. For example, to the community, it has become an increas whether, for the purposes of s92, which pro ingly important part of the structure of gov vides for trade among the States to be ‘absol ernment in Australia and has a legitimate utely free’, a law which burdens or discrimi right to be recognised and consulted in the al nates against inter-state trade is justified in location of responsibilities and resources the public interest, or whether it goes beyond within the public sector. what is reasonably appropriate for that pur pose, involves an examination of the social rights and freedoms. The Constitutional problem and the means available for resolv Commission recommended that the follow ing it. The facts which a court must find in de ing rights and freedoms be guaranteed in the termining such cases ‘differ from those which federal Constitution against acts done by the are peculiar to the parties to a dispute’. What legislative, executive or judicial arms of the ever construction is given to s92, whether as Commonwealth, States or Territories: conferring an individual right to trade or as a provision designed to prevent protectionist • freedom of conscience and religion policies, inquiries into the nature of the par • freedom of thought, belief and opinion ticular trade and the purpose and effect of • freedom of expression legislative rules and administrative decisions • freedom of peaceful assembly may be necessary. The Court might consider that expert adjudication and inquiry by the • freedom of association Inter-State Commission on some of these • freedom of movement questions would be desirable in the circum • freedom from discrimination on the stances. ground of race, colour, ethnic origin, sex, marital status or political, religious new states. Sections 121 and 124 of the or ethical belief Constitution already provide for the ad • the right not to be subjected to cruel, de mission or establishment of new States. How grading or inhuman treatment or pun ever, the existing provisions are unsatisfac ishment and not to be subjected to tory in a number of respects. For example, medical or scientific experimentation there is no explicit reference to the way in without consent which an existing self-governing entity, for example New Zealand, could be admitted to • the right to be secure against unreason the Commonwealth nor to the position of able search or seizure Territories surrendered to, and accepted by, • the right of a person arrested or de the Commonwealth under si 11 (for example, tained to be informed of the reason, to the Northern Territory and the Australian consult and instruct a lawyer, to have [1989] Reform 16 the lawfulness of the arrest or detention Rupert Hamer and Mr Whitlam, recom determined without delay and to be re mended that there should be no such power. leased if the detention is not lawful They argued that to include a guarantee of in • the right of a person arrested to be re dividual rights and freedoms in the Constitu leased if not promptly charged, not to tion and, at the same time, authorise the Par make a statement, to be brought without liaments to enact legislation which negates or delay before a court or competent tribu derogates from those guarantees whether or nal and to be released on reasonable not the legislation is justifiable in a free and terms and conditions unless there is democratic society is wrong in principle. The reasonable cause for the continued de majority felt that, where deep public feeling tention has been aroused, the citizen most needs the protection of an entrenched guarantee • various rights for persons charged with against the misconceptions of his or her fel an offence, for example, to be informed low citizens. The people’s representatives are without delay and in detail of the nature likely to share, or feel overborne by, the er of the charge, to have the opportunity to rors of the electorate and are likely to remove prepare a defence, to have legal assist the entrenched constitutional freedom from ance and to a fair hearing those most in need of it. The majority cited • exclusion of liability for conviction on the internment of American citizens of Japa account of an act which did not consti nese descent even though no ground existed tute an offence when it occurred. to doubt their loyalty. The minority of the The Commission also recommended an Commission, Professors Campbell and explicit provision to make it clear that the Zines, did not agree that it was pointless to statement of the new rights and freedoms was include further guarantees of rights and free not to be taken to restrict existing rights and doms in the Constitution and, at the same time, to include an override provision. They freedoms. On the other hand, it recom argued that incorporation of further guaran mended that the rights and freedoms should tees, even with an override clause, would be subject to such reasonable limits pre scribed by law as can be demonstrably justi have a significant impact. It would fied in a free and democratic society, but sub • operate to modify a good deal of exist ject to those limits only. It was vague on just ing law what such a limit actually meant. The Com mission did not propose that the rights and • introduce needed legal controls over the exercise of statutory discretions which freedoms should be limited to natural per sons. It argued that to limit the rights and can often result in infraction of civil lib freedoms of corporations may sometimes erties and limit the rights and freedoms of natural per • serve as a reminder to political Execu sons as well. For example, censorship of tives and Parliaments that the majority newspapers owned by corporations would of Australian electors have agreed that inhibit the freedom of speech of persons who those exercising Parliamentary legisla use the press to ventilate their opinions. tive powers should be attentive to cer tain fundamental values. The Commission considered whether there should be a power for the Parliament of The minority also was concerned at the the Commonwealth or of a State to override prospect of giving courts the last word in de constitutionally guaranteed rights and free ciding a wide range of issues which are some doms by expressly declaring that an Act or times very difficult and which many people part of a Act shall operate notwithstanding a regard as issues which cannot always be satis constitutionally entrenched right. A majority factorily resolved by methods of adjudica of the Commission, Sir Maurice Byers, Sir tion. The minority questioned whether a [1989] Reform 17 court’s judgment on whether a limitation of a • a power to make uniform laws with re guaranteed right or freedom constituted a spect to defamation, but not so as to reasonable limitation which was demon prevent the States from making laws strably justified in a free and democratic soci with respect to the publication of de ety would always and necessarily be ‘correct’ famatory matter in the course of pro or superior to that of a Parliament. Also, an ceedings in their Parliaments or their override clause could encourage judges to be courts more vigorous in their scrutiny in view of the • a power to make laws with respect to legislative safety net beneath them. Finally, nuclear material, nuclear energy and the minority was concerned that, once the ionising radiation High Court had ruled on an issue regarding a right or freedom, its interpretation would, in • a power to make laws with respect to the absence of an override power, stand until admiralty and maritime matters such time as it was persuaded to depart from • extension of the power over copyrights, the ruling or until the Constitution was for patents, designs and trade marks to mally altered. The override provision recom cover other products of intellectual ac mended by the minority would not apply to tivity in industry, science, literature and existing guarantees in the Constitution (for the arts example, the guarantee of freedom of re • powers over adoption, legitimacy and ligion as against the Commonwealth in si 16) the determination of parentage, custody or to the provisions recommended to guaran and guardianship of children, parental tee democratic rights. A declaration that an rights and maintenance of children Act was to have effect notwithstanding its • a power to make laws with respect to contravention of a right or freedom would property and financial rights between have to be renewed, at the latest, three years persons living together as if husband after it came into force. and wife (Sir Rupert Hamer disagreed with this recommendation) The Commission recommended that a • a ‘broadening’ of the power to make person whose rights or freedoms had been in laws with respect to social welfare pay fringed should have a specific right to apply ments to a court of competent jurisdiction for an appropriate remedy. • a power to make laws with respect to ac cident compensation and rehabilitation (Sir Rupert Hamer dissented, consider The Commission also proposed that the ing that overlapping between State right to trial by jury, the guarantee that feder schemes and the provision of benefits al laws for the acquisition of property must under various heads of power by the provide just terms for acquisition of property Commonwealth should be dealt with by and the right of freedom of religion as collaboration between the govern against the Commonwealth, all of which exist ments) in the Constitution, should be extended largely in the manner proposed in the refer • a power to make laws with respect to endum held on 3 September 1988 which was Aborigines and Torres Strait Islanders, rejected by the electorate (see [1987] Reform accompanied by the repeal of the power 183-6). to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. distribution of powers. The Commission recommended that the powers of federal Par external affairs. The federal Parliament liament be extended in a number of respects. has power to make laws with respect to exter These include nal affairs. This power has been interpreted [1989] Reform 18 so that federal Parliament has power to make • the non-disallowance by either House laws to implement the obligations of the within a specified period. Commonwealth under a treaty to which Aus trade and commerce. The Constitutional tralia is a party. The majority of the Commis Commission recommended that the federal sion recommended that no alteration be Parliament’s power over trade and commerce made to this power. It argued that, in the ab should not be limited to inter-State and over sence of the external affairs power, unless seas trade and commerce. It regarded the Australia were to withdraw from active par constitutional distinction between forms of ticipation in many fields of international trade as artificial and not suitable to modern negotiation, it would be necessary to seek the times. The federal government has a major agreement of the States to the ratification and responsibility for national and international implementation of treaties. The majority saw trade and investment. The fulfilment of this this as, in some cases, slow and cumbersome responsibility requires that regard be had to and in other cases wholly impracticable. In all things that affect the costs of Australian some circumstances, it could permit one or industry. In engaging in the task of national more States to determine, in effect, the policy economic management, the constitutional for Australia. On the other hand, Sir Rupert distinctions between forms of trade are, from Hamer considered that the existence of an an economic point of view, often irrelevant. unlimited power in the federal Parliament to enact legislation for the implementation of Sir Rupert Hamer disagreed with this recom mendation. He considered that the proposed treaties and other international agreements power was too broad and went far beyond on matters otherwise beyond its legislative what could be thought a justifiable or appro competence was unacceptable and made a mockery of the careful enunciation of federal priate transfer of power to the Common powers in the Constitution. The Constitu wealth. He argued that the general concern tional Commission did, however, recom was to secure uniformity of business regula mend that an Australian Treaties Council be tion where that was clearly desirable. He therefore supported the alternative unani established to enable State interests to be dis cussed and co-ordinated and for recommen mous recommendation of the Commission dations to be made as to how treaties might that, if the general power over trade and com best be implemented within Australia. A ma merce recommended by the majority were jority of the Commission said that it was un not adopted, federal Parliament should have necessary to provide for an increased role for power to make laws with respect to Parliament in the making of treaties. This • civil aviation, navigation and shipping would often give non-government supporters and in the Senate power to override executive • the labelling and packaging of, and policy supported by the Government and the standards for, goods for sale or hire. House of Representatives. If legislation is re quired, both Houses must pass the legislation The Commission also recommended the before it can become law, subject to the pos broadening of existing constitutional powers sibility of a double dissolution and joint sit to give federal Parliament power to make ting pursuant to s57 of the Constitution. laws with respect to However, Professor Zines and Sir Rupert • the incorporation, organisation and ad Hamer considered that there should be a stat ministration of corporations utory requirement that the ratification of treaties by Australia should be conditional on • financial, investment and other like either • markets and services • industrial relations. (Sir Rupert Hamer • the approval of both Houses of Parlia disagreed, considering this would con ment or fer too broad a power.) [1989] Reform 19 freedom of interstate trade. Section 92 of ting States to levy excise duties would not in the Constitution, which provides for freedom itself do away with this fiscal imbalance. of trade among the States, divided the mem However, there is a preponderance of expert bers of the Trade and National Economic views that, in the absence of a broad indirect Management Advisory Committee to the tax power, the States have resorted to other Constitutional Commission (see [1987] Re taxes which are regarded as less economically form 186). After the Advisory Committee desirable or the effect of which is difficult to published its report, the High Court in Cole v monitor. The Commission rejected the rec Whitfield (1988) 78 ALR 42 unanimously ommendation of the majority of the Trade adopted the view that s92 is aimed at prevent and Economic Management Advisory Com ing the pursuit of policies that have the object mittee that State power to impose excise duty or effect of protecting the trade and industries should be limited to ‘final consumption of a State from competition from those of taxes’. The Commission considered that such other States (the Tree trade view’). The a limitation would produce similar differ alternative view, which the Commission re ences of opinion among the High Court as to fers to as ‘the individual right view’, was that the purpose and scope of the provision as has s92 confers a right on each individual to en been evident in the interpretation of the pres gage in inter-state trade free from any re ent provision and that the Commonwealth straint that is not necessary for the reason has sufficient constitutional power in relation able regulation of that trade or the preserva to many types of taxes, and in other cases suf tion of an ordered society. The Commission ficient political and economic power, to deal agreed with the desirability of the result in with any difficulties that might arise. Cole v Whitfield and therefore recommended that s92 should not be altered. amending the constitution. The Constitu tional Commission recommended that State excise. The Commission recommended Parliaments as well as the federal Parliament that the States be empowered to levy excise should have power to initiate proposals for duties or, alternatively, that they be empow alteration of the Constitution. Such propo ered to do so with the consent of both Houses sals would be required to come from Parlia of the Parliament of the Commonwealth. The ments of not fewer than half the States pro Commission regarded the current prohib vided that the State Parliaments concerned ition in s90 preventing States from levying represent a majority of Australians overall. excise duties as unsatisfactory for the follow The Commission recommended that the pro ing reasons: posed alteration should be passed in identical • there is considerable uncertainty in the terms by the State Parliaments concerned interpretation of the provision and the within a 12 month period. The proposed al States cannot be expected to plan their teration would then be required to be put to budgets if important taxes remain sub referendum not less than 2 months and not ject to constitutional doubt more than 6 months after the requirement • the States have been forced to impose was satisfied. The Commission regarded taxes by technical and devious means States as having a legitimate interest in pro since the distinctions drawn in this area posing alterations to the Constitution which have no social or economic justification. determines how government power is distrib uted between federal and State Parliaments The Commission also considered that the and governments. It also considered that the present situation, in which the States are not existing monopoly by federal Parliament has responsible for the raising of most of the proved inadequate as a vehicle for producing funds they spend, has a serious effect on the the constitutional changes which Australia accountability and responsibility of State may need for political, social and economic Governments. It acknowledged that permit reasons. Notwithstanding this view, a ma- [1989] Reform 20 jority of the Constitutional Commission rec • There are sufficient avenues through ommended against provision for the initia which the citizen can participate in the tion by electors of referendums to alter the processes of representative democracy, Constitution. The Commission unanimously for example, joining a political party recommended against provision for initia and working from within to influence its tion by electors of referendums with respect policies and structures. to ordinary legislation. The majority, consist • The elector’s initiative may pose threats ing of Sir Maurice Byers, Professor Campbell to minority rights and interests. and Mr Whitlam, rejected the elector’s con stitutional initiative for the following • The formulation of a constitutional al reasons. teration is a detailed and complicated task, involving considerable experience and expertise. • It would be expected that the elector’s initiative would make some progress in A minority of the Commission, Sir the Australian States before its time was Rupert Hamer and Professor Zines, recom seen to have arrived in the federal mended the adoption of an elector’s initia sphere. Any State Parliament can spon tive. They said that it would alleviate the feel sor the proposal in its own jurisdiction ing of remoteness and impotence with re without the expense and hazard of a ref spect to political affairs that is felt by many erendum. people in the community. There is a sense that politicians are out of touch with the • In our political tradition, good govern views of the voters. The minority could see ment is associated with responsible gov no compelling arguments against giving the ernment involving regular and free elec Australian electors the opportunity of voting tions at which the electors choose be at referendum on whether or not they sup tween contending political parties on port a proposal for including elector’s initia the basis of alternative and coherent tive in the Constitution. The minority argued sets of policies on economic, social and that, without some mechanism of this kind, political matters. Under the present sys the decision-making process will seem re tem of alteration, a proposal to alter the mote to the majority of people, whose experi Constitution must be debated in Parlia ence of politics will be limited to voting at ment with due regard for the proposal’s elections and the referendums where politi consistency with existing and foreshad cians set the agenda for debate. The initiative owed legislation of the government. proposed by the minority would have the fol With the elector’s initiative, a proposal lowing features. may be put forward which, if passed, would undermine a vital part of the • The minimum number of voters re government’s platform and compro quired to initiate a referendum should mise its authority.• be 5% of voters qualified to vote for the election of members of the House of Representatives and should include 5% • The elector’s initiative would encourage of electors from a majority of the States. sectionalism. It would allow extremist Petitions should be signed at offices of groups to parade their proposals before the Australian Electoral Commission, the public with an apparent legitimacy thus ensuring the authenticity of the sig they would not otherwise command and natures. could further the cause of a single issue without regard to its wider implications • A petition would have to be endorsed for national welfare or without due con with the required number of signatures sideration for government policy. within 12 months of the first signature. [1989] Reform 21 • The Governor-General in Council privacy would be obliged to submit a proposal to the electors not less than 2 months There is only one thing in the world worse and not more than 6 months after re than being talked about, and that is not ceipt of a petition complying with the being talked about. constitutional and legislative require Oscar Wilde, The Picture of ments. Dorian Gray (1891)
The Commission rejected the idea of a The Privacy Bill 1988 (Cth) was passed by standing convention or commission being the Senate in December 1988. The aim of the charged with the review of the Constitution legislation is to protect people from intru and having power to initiate proposals for al sions into their personal privacy by the Gov teration which would be required to be sub ernment. The legislation follows the ALRC mitted to referendum. The Commission also Report Privacy (ALRC22). recommended that referendums of the The Privacy Bill establishes, information people continue to be the only means of alt privacy principles (IPPs) (based on the prin ering the Constitution except in the case of ciples recommended by the Australian Law expended provisions of the Constitution. Reform Commission) to govern the use of Such ‘expended’ provisions would include and access to personal information by Com interim provisions which dealt with specific monwealth Departments and agencies. It sets matters pending the enactment of federal leg up an Office of Privacy Commissioner, with islation and transitional provisions. In the in the Human Rights and Equal Opportunity case of the latter, a majority of the Commis Commission (HREOC), to act as a watchdog sion recommended that federal Parliament, of privacy interests. The Privacy Commis with the consent of the Parliaments of all the sioner is empowered to require government States, should be able to make laws for the departments and agencies to adhere to the omission of a provision which has ceased to IPPs, and provision is made for the payment have any operation. However, Sir Maurice of compensation for loss or damage caused Byers had strong reservations about this pro by a breach of the IPPs by government de posal. A majority of the Commission (Sir partment or agencies. Finally, the Privacy Rupert Hamer and Professor Zines dissent Commissioner will investigate alleged mis ing) recommended that a referendum should uses of the tax file number system by both be passed if it receives an overall majority of government agencies and private sector bod votes in favour and a majority of votes in not ies. fewer than half the States. In his second reading speech the Deputy Prime Minister and Attorney-General, Lion The future. The report of the Constitu el Bowen, said: tional Commission is detailed and compre hensive. It demonstrates many problems with There is no doubt that with the greater the workings of the current Constitution. Al range of services being provided, govern though the enthusiasm for constitutional re ments are accumulating more personal in formation about individuals in order to form at the political level may have been provide those services efficiently and effec dealt a severe blow by the result of the refer tively. This, together with the ever- endum held on 3 September, the report of the increasing capacity of modern computers Constitutional Commission is an important to search and process information offers contribution to the study of Australia’s politi significant potential for invasion of per cal and legal institutions.* sonal privacy by misuse... Internationally there is an increasing trend for Govern ments to enact privacy legislation. The * * * Council of Europe’s Convention on Data