Changing the Australian Constitution was always meant to be difficult – here’s why


Anne Twomey, University of Sydney

Debates about constitutional change in Australia inevitably raise the poor success rate of referendums. Only eight out of 44 attempts have ever succeeded and there has not been a successful constitutional change since 1977.

So why was the referendum chosen as the means of amending our federal constitution, and was it really intended to be so hard to succeed?

In the 1890s, adopting a referendum as the means of amending the constitution was quite radical. None of the countries from which the framers of the constitution drew precedents and inspiration – the United Kingdom, Canada and the United States – used a referendum.

Why then did Australia take a different path and entrust the people with the final decision on constitutional change?




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The UK supported flexible constitutions and easy change

In the United Kingdom, the view was taken that every generation had the right to change the constitution to suit its own needs. Accordingly, it did not have a formal constitution with restrictions on how it could be amended. Instead, the UK had a range of legislation dealing with constitutional matters that could be changed by the vote of an ordinary majority in parliament.

In the 1850s, when the New South Wales Constitution was being enacted, NSW politicians wanted to:

frame a Constitution in perpetuity for the colony – not a Constitution which could be set aside, altered and shattered to pieces by every blast of popular opinion.

But the British government inserted an overriding provision in the statute that approved the NSW Constitution, which allowed the constitution to be amended by ordinary legislation passed by the NSW parliament. They sought to ensure that the people, through their parliamentary representatives, were free to change their constitution as and when it suited them.

Federal systems need rigid constitutions and more difficult change

When it came to making a constitution for an Australian federation, such flexibility was not possible.

A federal constitution confers different powers at the federal and state level. If the federal parliament had the power to change it by passing ordinary legislation, then all powers and protections of the states could be easily removed, destroying the federal system. That meant that a “rigid” or “entrenched” constitution was needed – one that could not be amended simply at the behest of one level of government.

The two obvious federal examples to draw on were Canada and the United States. The Constitution of Canada was set out in a British statute of 1867. Because it did not contain an internal mechanism to amend the constitution, only the British parliament could amend it.

The framers of the Australian Constitution did not want to go begging to Westminster whenever they wanted to amend their constitution. They wanted control over the constitution to rest in Australian hands. So they rejected the Canadian approach.

The other well-known federal example was the United States. Despite all the constitutional rhetoric of “we, the people”, the US Constitution has never been amended by a direct vote of the people. Instead, it requires a constitutional amendment to be initiated and ratified by a combination of special majorities of votes in Congress, the state legislatures or especially established conventions. The people do not get a direct say.

How the referendum was seen in the 1890s

In the 1890s, the referendum became the subject of much study and interest outside its existing use in Switzerland and in parts of the United States at state and local level.

One strong and influential supporter of the referendum in the United Kingdom was A. V. Dicey. This was surprising, as he is best known for his support of parliamentary sovereignty. But Dicey saw the referendum as both democratic and conservative. In 1890 he said:

It is democratic, for it appeals to and protects the sovereignty of the people; it is conservative, for it balances the weight of the nation’s common sense or inertia against the violence of partisanship and the fanaticism of reformers.

Dicey was opposed to Home Rule for Ireland and saw the referendum as a means of allowing the people to veto constitutional change that would otherwise be imposed on the country due to party-political considerations.

In 1894, he described the referendum as “the People’s Veto”. In words that might well resonate today, he expressed concern that

the art of Party warfare is turning into the art of bribing and confusing voters.

To him, the referendum was a means of defeating change by relying on the general reluctance of people to risk the unknown. It is as if he had foreseen the history of federal referendums in Australia.

Why Australia chose the referendum

The idea of adopting the referendum, both as a means of approving a federal constitution and later amending it, was raised by Alfred Deakin in 1890 and Charles Kingston in 1891. They approached the issue as one of democracy, rather than conservatism.

Nonetheless, the 1891 Constitutional Convention rejected the proposal for a referendum. Sir Samuel Griffith argued that constitutional change was complex and it was not practicable for voters to be familiar with every detail. He considered an elected convention of political experts was better suited to dealing with such issues.

The convention ultimately approved a model similar to that in the United States, involving passage of an amendment by an absolute majority of both houses of the federal parliament, then approval by special conventions in a majority of states.

By the time of the 1897 Constitutional Convention, however, Griffith was gone and those supporting a form of more direct democracy prevailed. The referendum was chosen, but it was still to be subject to several hurdles.

There was no intention that the constitution be easy to change. Tasmanian Premier Sir Edward Braddon observed that the feeling of the convention was:

… that it should be made as difficult as possible to amend the Constitution.

While it was not to be made “absolutely impossible”, the constitution should not be easily capable of change upon “any fluctuation of public opinion” or in response to a crisis of a temporary character.

What is needed for a referendum to pass?

So what hurdles must be overcome for the Australian Constitution to be amended?

First, the amendment must be approved by an absolute majority of each house of parliament, or it must be passed twice by an absolute majority of one house, with an interval of three months in between. This effectively gives the federal government control over what goes to a referendum, because even if the Senate alone approves a referendum, it still requires the governor-general to put it to the referendum. On the only occasion this occurred, in 1914, the governor-general acted on the advice of the government not to hold the referendum.

Secondly, once a constitutional amendment is put to a referendum, it has to be passed by a majority of all the electors who vote. Since 1977, this has included electors in the territories.

Thirdly, a referendum must also be approved by a majority of voters in a majority of the states. That means that there has to be majority “yes” vote in four of the six states.




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There are also special requirements if the constitutional change would diminish the proportionate or minimum parliamentary representation of a state or affect the borders of a state, in which case the approval of a majority of electors in the affected state is required.

The political hurdles to referendum success

These are the legal and constitutional hurdles. But as Dicey noted in the 1890s, and many others have since, there are numerous political reasons why referendums fail. These include poor proposals, fear of change, political opportunism by governments or oppositions, a low level of public understanding of constitutional matters, poor campaigning and sheer inertia or public disinterest.

Constitutional change in Australia is always an uphill battle, but that is no reason to shirk it. Instead, it should be a spur to produce better proposals for constitutional change, develop strong and clear arguments for reform, cultivate widespread public support and undertake vigorous, but honest, campaigns.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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After the floods come the mosquitoes – but the disease risk is more difficult to predict


Cameron Webb, University of Sydney

We’re often warned to avoid mosquito bites after major flooding events. With more water around, there are likely to be more mosquitoes.

As flood waters recede around Townsville and clean-up efforts continue, the local population will be faced with this prospect over the coming weeks.

But whether a greater number of mosquitoes is likely to lead to an outbreak of mosquito-borne disease is tricky to predict. It depends on a number of factors, including the fate of other wildlife following a disaster of this kind.

Mozzies need water

Mosquitoes lay their eggs in and around water bodies. In the initial stages, baby mosquitoes (or “wrigglers”) need the water to complete their development. During the warmer months, it doesn’t take much longer than a week before they are grown and fly off looking for blood.

So the more water, the more mosquito eggs are laid, and the more mosquitoes end up buzzing about.

But outbreaks of disease carried by mosquitoes are dependent on more than just their presence. Mosquitoes rarely emerge from wetlands infected with pathogens. They typically need to pick them up from biting local wildlife, such as birds or mammals, before they can spread disease to people.




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Mosquitoes and extreme weather events

Historically, major inland flooding events have triggered significant outbreaks of mosquito-borne disease in Australia. These outbreaks have included epidemics of the potentially fatal Murray Valley encephalitis virus. In recent decades, Ross River virus has more commonly been the culprit.

A focal point of the current floods is the Ross River, which runs through Townsville. The Ross River virus was first identified from mosquitoes collected along this waterway. The disease it causes, known as Ross River fever, is diagnosed in around 5,000 Australians every year. The disease isn’t fatal but it can be seriously debilitating.

Following substantial rainfall, mosquito populations can dramatically increase. Carbon dioxide baited light traps are used by local authorities to monitor changes in mosquito populations.
Cameron Webb (NSW Health Pathology)

In recent years, major outbreaks of Ross River virus have occurred throughout the country. Above average rainfall is likely a driving factor as it boosts both the abundance and diversity of local mosquitoes.

Flooding across Victoria over the 2016-2017 summer produced exceptional increases in mosquitoes and resulted in the state’s largest outbreak of Ross River virus. There were almost 1,700 cases of Ross River virus disease reported there in 2017 compared to an average of around 300 cases annually over the previous 20 years.




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Explainer: what is Ross River virus?


Despite plagues of mosquitoes taking advantage of flood waters, outbreaks of disease don’t always follow.

Flooding resulting from hurricanes in North America has been associated with increased mosquito populations. After Hurricane Katrina hit Louisiana and Mississippi in 2005, there was no evidence of increased mosquito-borne disease. The impact of wind and rain is likely to have adversely impacted local mosquitoes and wildlife, subsequently reducing disease outbreak risk.

Applying insect repellent is worthwhile even if the risk of mosquito-borne disease isn’t known.
From shutterstock.com

Australian studies suggest there’s not always an association between flooding and Ross River virus outbreaks. Outbreaks can be triggered by flooding, but this is not always the case. Where and when the flooding occurs probably plays a major role in determining the likelihood of an outbreak.

The difficulty in predicting outbreaks of Ross River virus disease is that there can be complex biological, environmental and climatic drivers at work. Conditions may be conducive for large mosquito populations, but if the extreme weather events have displaced (or decimated) local wildlife populations, there may be a decreased chance of outbreak.

This may be why historically significant outbreaks of mosquito-borne disease have occurred in inland regions. Water can persist in these regions for longer than coastal areas. This provides opportunities not only for multiple mosquito generations, but also for increasing populations of water birds. These birds can be important carriers of pathogens such as the Murray Valley encephalitis virus.




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In coastal regions like Townsville, where the main concern would be Ross River virus, flood waters may displace the wildlife that carry the virus, such as kangaroos and wallabies. For that reason, the flood waters may actually reduce the initial risk of outbreak.

Protect yourself

There is still much to learn about the ecology of wildlife and their role in driving outbreaks of disease. And with a fear of more frequent and severe extreme weather events in the future, it’s an important area of research.

Although it remains difficult to predict the likelihood of a disease outbreak, there are steps that can be taken to avoid mosquito bites. This will be useful even if just to reduce the nuisance of sustaining bites.

Cover up with long-sleeved shirts and long pants for a physical barrier against mosquito bites and use topical insect repellents containing DEET, picaridin, or oil of lemon eucalyptus. Be sure to apply an even coat on all exposed areas of skin for the longest lasting protection.The Conversation

Cameron Webb, Clinical Lecturer and Principal Hospital Scientist, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

My Health Record: Deleting personal information from databases is harder than it sounds



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Federal Health Minister Greg Hunt has announced that the My Health Record system will be modified to allow the permanent deletion of records.
Shutterstock

Robert Merkel, Monash University

Since the period for opting out of My Health Record began on July 16, experts in health, privacy and IT have raised concerns about the security and privacy protections of the system, and the legislation governing its operation.

Now federal health minister Greg Hunt has announced two key changes to the system.

First, the legislation will be amended to explicitly require a court order for any documents to be released to a law enforcement agency. Second, the system will be modified to allow the permanent deletion of records:

In addition, the Government will also amend Labor’s 2012 legislation to ensure if someone wishes to cancel their record they will be able to do so permanently, with their record deleted from the system.

But while this sounds like a simple change, permanently and completely deleting information from IT systems is anything but straightforward.




Read more:
My Health Record: the case for opting out


Systems designed for retention, not deletion

The My Health Record database is designed for the long-term retention of important information. Most IT systems designed for this purpose are underpinned by the assumption that the risk of losing information – through a hardware fault, programming mistake, or operator error – should be extremely low.

The exact details of how My Health Record data is protected from data loss are not public. But there are several common measures that systems like it incorporate to greatly reduce the risks.

At a most basic level, “deletion” of a record stored in a database is often implemented simply by marking a record as deleted. That’s akin to deleting something on paper by drawing a thin line through it.

The software can be programmed to ignore any such deleted records, but the underlying record is still present in the database – and can be retrieved by an administrator with unfettered permissions to access the database directly.

This approach means that if an operator error or software bug results in an incorrect deletion, repairing the damage is straightforward.




Read more:
My Health Record: the case for opting in


Furthermore, even if data is actually deleted from the active database, it can still be present in backup “snapshots” that contain the complete database contents at some particular moment in time.

Some of these backups will be retained – untouched and unaltered – for extended periods, and will only be accessible to a small group of IT administrators.

Zombie records

Permanent and absolute deletion of a record in such a system will therefore be a challenge.

If a user requests deletion, removing their record from the active database will be relatively straightforward (although even this has some complications), but removing them from the backups is not.

If the backups are left unaltered, we might wonder in what circumstances the information in those backups would be made accessible.

If, by contrast, the archival backups are actively and irrevocably modified to permit deletion, those archival backups are at high risk of other modifications that remove or modify wanted data. This would defeat the purpose of having trusted archival backups.

Backups and the GDPR’s ‘right to be forgotten’

The problem of deleting personal information and archival backups has been raised in the context of the European Union’s General Data Protection Regulation (GDPR). This new EU-wide law greatly strengthens privacy protections surrounding use of personal information in member states.

The “right to erasure” or “right to be forgotten” – Article 17 of the GDPR – states that organisations storing the personal information of EU citizens “shall have the obligation to erase personal data without undue delay” in certain circumstances.

How this obligation will be met in the context of standard data backup practices is an interesting question, to say the least. While the legal aspects of this question are beyond my expertise, from a technical perspective, there is no easy general-purpose solution for the prompt deletion of individual records from archived data.

In an essay posted to their corporate website, data backup company Acronis proposes that companies should be transparent about what will happen to the backups of customers who request that records be deleted:

[while] primary instances of their data in production systems will be erased with all due speed … their personal data may reside in backup archives that must be retained for a longer period of time – either because it is impractical to isolate individual personal data within the archive, or because the controller is required to retain data longer for contractual, legal or compliance reasons.

Who might access those backups?

Data stored on archival backups, competently administered, will not be available to health professionals. Nor will they be available to run-of-the-mill hackers who might steal a practitioner’s credentials to gain illicit access to My Health Record.

But it’s not at all clear whether law enforcement bodies, or anyone else, could potentially access a deleted record if they are granted access to archival backups by the system operator.

Under amended legislation, such access would undoubtedly require a court order. Nevertheless, were it to be permitted, access to a deleted record under these circumstances would be contrary to the general expectation that when a record is deleted, it is promptly, completely and irrevocably deleted, with no prospect of retrieval.




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Opting out of My Health Records? Here’s what you get with the status quo


Time required to work through the details

In my view, more information on the deletion process, and any legislative provisions surrounding deleted records, needs to be made public. This will allow individuals to make an informed choice on whether they are comfortable with the amended security and privacy provisions.

Getting this right will take time and extensive expert and public consultation. It is very difficult to imagine how this could take place within the opt-out period, even taking into account the one-month extension just announced by the minister.

The ConversationGiven that, it would be prudent to pause the roll-out of My Health Record for a considerably longer period. This would permit the government to properly address the issues of record deletion, as well as the numerous other privacy and security concerns raised about the system.

Robert Merkel, Lecturer in Software Engineering, Monash University

This article was originally published on The Conversation. Read the original article.

Three reasons why the decisions of Joyce and Nash may be difficult to challenge



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Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged?
AAP/Mick Tsikas

Anne Twomey, University of Sydney

Now that Barnaby Joyce, Fiona Nash and three other senators have been declared invalidly elected, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.

As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.

Parliamentary votes

Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.

The only Australian authority is the 1907 case of Vardon v O’Loghlin. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.

This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.

If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.

Ministerial decisions

Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015.

When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly.


Further reading: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?


Does this mean that the decisions they made during this period could be challenged? There are three important factors at play.

Standing

First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter.

For example, if the property or financial interests of a person are affected by a decision, then they may have standing.

There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the postal survey on same-sex marriage, but the High Court did not need to resolve it because the challenge failed anyway.

So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.

The source of the decision-making power

Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source.

The waters have been muddied by statements concerning the fact that ministerial decisions are often approved by cabinet.

The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council.

It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.

Timing and the de facto officer doctrine

The third issue concerns timing and the possible application of the “de facto officer” doctrine.

This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it.

If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.


Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’


The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.

For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the High Court of the Solomon Islands relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.

In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.

In 2000, the High Court unanimously held in Bond v The Queen that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”.

The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.

Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the Court of Disputed Returns, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.

Where does this leave us?

It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.

There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).

It would also depend on the extent to which the de facto officers doctrine applied.

The ConversationIt may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.

Australia: Tony Abbott Promises to Shirtfront Vladimir Putin


One does have to wonder just how serious Tony Abbott’s comments can be taken, especially this one about ‘shirtfronting’ Russia’s Vladimir Putin. Is this a core promise or just spruiking for the camera – will there be some video record of the shirtfronting, because without it I would find it difficult to believe it has happened.

El Salvador: Six Evangelicals Murdered


Over the years this Blog has featured links to stories relating to Christian persecution around the world. One country that has featured a great deal has been El Salvador. The article linked to below provides something of an insight into just how difficult it can be to be a Christian in that country.

For more visit:
http://global.christianpost.com/news/six-evangelical-christians-including-teenager-murdered-in-el-salvador-112525/

Cricket: Ashes Report – 20 July 2013


The first two days of the Ashes second test at Lords are over and it would appear that England are on track for a 5 nil whitewash of the series. Australia are terrible – poor bowling at times and abominable batting. It is difficult to see how Australia can compete in this Ashes series, let alone this test match.




Nigeria: Plan to Grant Boko Haram Amnesty


The link below is to an article that reports on plans in Nigeria to grant Boko Haram amnesty, which I have to say I find difficult to accept.

For more visit:
http://allafrica.com/stories/201304050714.html

Plinky Prompt: What I’ll Remember Most About 2011


View from the Grand High Tops

This is a difficult question to answer – because there has not really been any ‘big’ events or happenings in my life this year (that I can remember anyway). I must lead a really boring life – which is probably true.

I guess the thing I will most remember, for the next little while anyway, will be the last month of the year. I have been on vacation from work for the entire month of December and have had a great time travelling around the state – well northern NSW anyhow. It has been just the break I have needed and will perhaps save my sanity for a bit.

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