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Victorian Greens seek to amend constitution to prevent thermal coal mining

The hurdles for amending a state constitution make a Greens bill, introduced in May, unlikely to pass.

The Greens have introduced a bill into the Victorian Legislative Council to transition the state away from thermal coal. A section of the bill would require amending the state’s constitution, which, in this scenario, can be a difficult process.

In 1854, three years after becoming a colony independent from New South Wales, the first draft for a Victorian Constitution was passed by the Legislative Council and sent to Britain to be signed into law. This passed the British Parliament in 1855, with some amendments. However, despite being British legislation, the Victorian Parliament was still able to amend the document.

When Australia federated in 1901 and Victoria became a state, the Australian Constitution imposed limitations on the law-making power of the Victorian Parliament. Whilst the Statute of Westminster Adoption Act 1942 (Cth), explored by GovCheck editor Stuart Jeffery here prevents the United Kingdom Parliament overruling Commonwealth legislation, the UK could still make or repeal state laws.

Remarkably, it wasn’t until 1975 that the Rupert Hamer-led Liberal government made the Victorian Constitution an act of the Victorian Parliament, unable to be altered by the UK. This was done through the Constitution Act 1975 (Vic), which outlines principles for responsible government.

Unlike the Australian Constitution which can only be altered by a referendum, supported by the majority of voters in the majority of states, there is no sole process to change the Victorian Constitution. The procedure depends on the section being amended.

Referendums are required to change sections relating to the operation of the Legislative Council and Legislative Assembly, which include certain subsections of divisions five and six in Part Two and Section 41 of the Victorian Constitution. A referendum is also needed to change Division Nine of Part Two, which relates to the process of resolving disputes relating to bills before parliament.

Victoria has not had a state referendum since federation as most amendments can be made with just a simple majority, of 50% + 1, of the members who were in Parliament at the time, which is no different than the requirement to pass any other legislation. In certain cases, an absolute majority is required, which means a majority of all members in the Legislative Council and Legislative Assembly, must support the proposition. This certifies a higher bar, irrespective of whether all members are present for a vote.

For example if only 60 of the 88 MLAs are present when a simple majority is needed, it only needs 31 votes, as that is 50% + 1 of 60. However, if it requires an absolute majority, 45 votes are needed, 50% + 1 of 88, even though not all 88 are present.

In some rare cases, a special majority is required to amend the Victorian Constitution. This means 60% of members in both houses must vote in favour of the proposal, creating a restriction on the power of a government. This applies to altering the recognition of Aboriginal peoples in Section 1A, provisions about the Crown in Part I, and Division 1 of Part II, which deals with the practices of responsible government.

A special majority is also required to amend Parts VII and VIII of the Victorian Constitution, with the former outlining the delivery of water services, and the latter maintaining the prohibition on fracking and coal seam gas exploration and mining.

The Greens bill, the Energy and Resources Legislation Amendment (Transition Away from Coal) Bill 2023 (Vic) aims to expand on Part VIII, by strengthening the current restrictions on coal seam exploration and mining. The bill would create a new section 8AE to the Mineral Resources (Sustainable Development) Act 1990 (Vic), to prohibit the exploration or mining of coal on Victorian land.

This would be done by adding to Section 99 of the Victorian Constitution in Part VIII, by adding a new section of 99A to give authority to this amendment.

Whilst the bill would prevent the current bans being altered or repealed, it does give Parliament power to make some changes. This specifically relates to provisions that don’t compromise the ‘substantive operation’ of the Act.

Examples of this may be removing a provision which is already covered by another section, or an editorial change relating to grammatical errors, numbering or referencing. The only changes to the substance of the Act which are permitted without a special majority, is increasing penalties related to breaching the Act, or widening the amount of people the Act applies to.

Part Six of the bill would have the Act repealed on the 31st of December 2031, where the government at the time would be expected to review the legislation and implement changes or extend the length of its jurisdiction. Whilst the Act itself would be repealed, any amendments made to it would still be in force, unless otherwise specified.

There are other sections of the bill which would help transition the state to renewable energy, without codifying the changes into the Victorian Constitution, meaning they could be easily changed by a future government.

This includes Part 2 of the bill, which would insert Division 5 into Part 4.4 of the Environmental Protection Act 2017 (Vic) to prevent the issuing or extension of licenses for coal thermal activity. It would also revoke all current coal thermal licenses from commencement day, which would be the day on which the current bill comes into operation.

The amendment would also prevent the State from being liable for any ‘loss, damage or injury’ that occurs as a result of the refusal to grant or extend coal thermal licenses.

Finally, Part Three of the bill would substitute the 50% renewable energy target by 2030 found in the Renewable Energy (Jobs and Investment) Act 2017 (Vic) with 100%, meaning by 2030 all of the energy generated in Victoria would be from renewable sources.

It would be a struggle for the Greens to get the bill passed, however, due to the requirement for a 60% majority. If they were able to get Labor on board, they could get a combined 60 seats in the Legislative Assembly, which would meet the requirement.

The difficulty would arise in the Legislative Council, where 24 votes would be needed. Labor members, combined with the Greens, Legalise Cannabis and Animal Justice only makeup 22 seats in the Assembly. This means the Greens would need two Coalition party members to support the proposal, or alternatively two of the five ‘conservative’ crossbenchers. This is unlikely to happen, and even Labor’s support is not guaranteed.

Whilst the bill is unlikely to pass, if it becomes law, it will have a drastic impact on Victorian energy policy and be a rare example of a special majority in both houses of Parliament.

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