Subjects: Constitution, Queensland border, federal election, Religious Discrimination Bill
CATHERINE MACGREGOR: Welcome to the MacGregor Angle. My name is Catherine MacGregor and each Friday night I try to dig a little bit into the trends behind our politics and society over the past week. Now I know from your voluminous correspondence and our social media feeds that may of you are feeling bewildered about changes to our nation that you’ve seen in the last 18 months. Many of you are struggling to keep a roof over your head or to school your kids while juggling your own work. In recent months, many of you questioned the very nature of our system of politics and government and wondering whether our liberties will be returned when the pandemic is brought under control. I’m a Constitutional Conservative, you’ve heard me argue numerous times on this program and also with Alan Jones that the Constitution drafted by our founders contains great wisdom and it has been ignored by state Premiers, safe behind closed borders yet funded by Commonwealth funding. Indeed, your taxes. Unlike the two World Wars, this crisis is not [inaudible] from Canberra, it’s devolved to the states, with the Premiers [inaudible] daily announcements of COVID numbers and all the measures they’re enacting to deal with them. Now my first guest tonight possesses an exceptional legal mind, is a brilliant scholar of the Constitution who served as an Associate to a very fine Constitutional Conservative, Ian Callinan when he was a Justice of the High Court. Since her election to the Senate, she’s enjoyed a meteoric rise and now serves as an Assistant Minister to the Attorney-General, as well as the Assistant Minister for Women and the Assistant Minister for Industrial Relations. I’m referring of course to Senator Amanda Stoker, who joins me now in my Canberra studio.
AMANDA STOKER: Hi Catherine.
CATHERINE MACGREGOR: Great to join you, it’s great to have a live guest in this strange time. I’ve been dealing with disembodied people down the line. It’s lovely to see your smiling face-
AMANDA STOKER: And a joy to catch up with you.
CATHERINE MACGREGOR: Overdue. Now without turning this into a tutorial about the Constitution, there are some matters I think that our citizens are beginning to worry about so I’m going to do the thing every commentator loves to do and every politician hates – I’m going to have 100 per cent hindsight and I’m going to throw you a hypothetical.
AMANDA STOKER: What could possibly go wrong? Let’s do it!
CATHERINE MACGREGOR: What could go wrong? [inaudible] But look, with hindsight, what do you think about this sort of Zoom conferencing so-called National Cabinet? It’s a stranger to our Constitutional processes, you know that famous decision of Pape that came out during the GFC? It’s called the nationhood power. Do you believe with hindsight it might have been better had the Commonwealth Government governed, and to hell with these Premiers? Has Prime Minister Morrison, in an attempt to create harmony, created a monster?
AMANDA STOKER: To his credit, the Prime Minister was motivated by a really genuine desire on the part of Australians to see politicians work together in a time of crisis. And for a period of time, that was certainly achieved. There was, at least for a time, a sense that we were all in this together, and doing what we need to, to get the country back on track. That has not continued as state Premiers have sought to chase somewhat craven political advantage, rather than really focusing on that Team Australia kind of attitude. And it has shown some flaws, I think in the National Cabinet process. To his credit, the PM perseveres with it very sincerely. He goes into every meeting genuinely trying to get the Premiers onto a sensible page. It was he who led them to bringing together the National Plan to get us out of this mess. He got everybody, despite their different perspectives from the political angles from which they come, to sign up to that National Plan to get us back to normal, back to enjoying all the things that are great about this country, and now we find after that agreement’s voluntarily signed, sealed and delivered, that they’re trying to sort of shuffle away from it. I think you’re right to highlight the connection to the Constitution though. It was our founding fathers, quite deliberately, set up a decentralised nation. They wanted the bulk of powers to be in the hands of the states. The only exception to that rule is for circumstances that genuinely pertain to the nation, as a whole. You know that as well as I do. You know the Constitution. So, things like defence and telecommunications and matters that were truly for the nation were carved out for the federal sphere, otherwise all residual powers and responsibilities belong to the states. This time, this intractable frustration with states that refuse to do what’s necessary to help Australians get their lives back to normal, I think, has exposed the greatest risk to our federation that we’ve seen in decades.
CATHERINE MACGREGOR: Yes. And I suspect, you know, Sir Owen Dickson and Gough Whitlam would both be tapping their head from a legal perspective thinking, ‘how did this happen?’
AMANDA STOKER: Yes, probably.
CATHERINE MACGREGOR: Because as you know, Greg Craven, you and I would be happy to go back to a pre-engineers construction of the Constitution. No one quite expected these exhaustive plenary powers to be used in such a draconian way. Which brings me to the next point, a lot of commentators mistakenly say ‘well, the Commonwealth has the power over quarantine’. Now take us through the fact that, that’s not quite right, is it? The Commonwealth has an enumerated power but it has not covered the field as expressly as it might. Walk us through why the states are still in this quarantine business, as recently as yesterday with the Wellcamp announcement by your own Premier.
AMANDA STOKER: It’s a really good point because it gets lost in the public debate around this stuff. The federal responsibilities as set up through the Biosecurity Act, deal with the way we keep problems out of this country at the national border but it doesn’t actually do anything in relation to what happens once things we get through that border. And the public health response that is being implemented by the states, is a state responsibility. So while it’s convenient for state governments to try and shift a lot of the expense associated with quarantine, and, of course, the political risk that comes from when things don’t go according to plan onto the Federal Government. Ultimately, the vast majority of it rests on the shoulders of the states. It’s part of the reason why you saw the Palaszczuk Government able to announce a quarantine facility yesterday in the Toowoomba region, despite the fact that it is something that doesn’t meet the criteria for being an effective site that won’t be built at a time when the real risks for quarantine exist, by the time it’s built – you know - we’ll be over the 80 per cent vaccination rate, and it’s just another sign of the way they are intent on playing politics with something that’s quite frankly, is too important to be the subject of these kind of games.
CATHERINE MACGREGOR: Yes. And we could, given our passion for the Constitution, we could go the whole show, Senator. The politics of this, I sense, this week shifted a little bit. The Prime Minister was able to reset some somewhat with a more optimistic message. Will it come to the crunch? Will the Commonwealth stand up and take recalcitrant Premiers who insist on border closures to the original jurisdiction of the High Court, if they don’t play via the playbook that’s been constantly remodelled as the Doherty Institute, giving us pretty optimistic views about what a closed lockdown, or rather border closure, would look like? Will the Commonwealth stand its ground and drag the Premiers off to the Court and argue, at least, the Section 92 argument about intercourse amongst the states?
AMANDA STOKER: Look, I think you could expect the Prime Minister to carefully but steadily increase the pressure on the states to do the right thing. He’s a cautious man and cautious is appropriate, given the importance of what we’re dealing with. He wants to give the states the chance to do the right thing. But I have no doubt that if he runs out of options, we will be prepared to step up because that’s what Australians ask of their Prime Minister. They ask for leadership. I know he will give Australians the leadership they need. If we think about the Section 92 question, obviously we had some consideration of that at the very start of the pandemic given in Parliament’s case. It illuminated something that those who aren’t law nerds like us who aren’t necessarily aware of, and that’s the idea that the right of Australians to move from state to state – this is completely unconfined – it’s got to be proportionate. Or put another way, proportionate encroachments can exist on that right, that’s a better way to express it.
CATHERINE MACGREGOR: And burdensome, which is separable from movement.
AMANDA STOKER: That’s right. And so, when the Court at that point said that border closures were an appropriate measure for the time, they were dealing with a world where there was no vaccine at that point in time.
CATHERINE MACGREGOR: Yes.
AMANDA STOKER: The predictions for mass deaths were enormous. We didn’t have our hospitals in a state of preparation in the way that they are now. The factual circumstances are wildly different. I think if you were to take that question to the High Court now, you would face a very different outcome on that proportionality question, in circumstances where we have not just a vaccine but a range of effective vaccines.
CATHERINE MACGREGOR: Yes.
AMANDA STOKER: We’ve got a rapidly rolling out program for people to receive those vaccines with a million people getting the jab every three days. And we have a hospital system very equipped to deal with that reduced level of severity we can expect in vaccinated patients.
CATHERINE MACGREGOR: Yes.
AMANDA STOKER: So, I’m optimistic about what the prospects would be if we had to go down that path in the time ahead.
CATHERINE MACGREGOR: I can see you there with the gown on [inaudible]. But look, to round this out, you’re from the Social Conservative wing of your party-
AMANDA STOKER: Sure.
CATHERINE MACGREGOR: -you’re a woman of faith, what’s your message to people who are fleeing for these splinter parties, there’s an insurgency on the right of the Coalition. I’ve said to numerous guests over the course of this year, John Anderson said that he would remember John Howard would be doing precisely what the current Prime Minister and Josh Frydenberg have done. He’s a pragmatist. And John Anderson had no argument with it. Some people seem to think there’s another option, apart from Anthony Albanese versus Scott Morrison. What’s the prospect of a Freedom of Religion Bill being enacted, as it was pledged over the last election, and what’s your message to Social Conservatives who are concerned about questions like – what’s your pitch for them to stay in the fold?
AMANDA STOKER: Well, we remain committed to delivering in this term of Government a Religious Discrimination Act. From a personal perspective, the recognition and protection of religious freedom is really important not just because it matters to people of faith but because it goes to the core of the way we respect the individual in our society. If we’re not free to enquire and to think and to make your own decisions about what you do and don’t believe in, well whether it’s about faith or something else, you’re not very free at all. And that’s why people of faith, and also people who aren’t of faith, should really care about it. We made really specific promises about this Bill before the next election and it is our intention to introduce the Bill to meet our promises and we’ll do whatever we can to negotiate good sense out of Labor and the Crossbench to get that through. We owe it to Australians to give it our very, very best shake but if anybody who shares our world view thinks that they will get that kind of respect from a Labor Party who is dominated at its hard left then they’re dreaming. And while no government necessarily, perfectly aligns with every single thing that we as individuals believe in, the contrast between what we get under a Morrison Coalition Government versus the evasive hard leftism that you get from a Labor potential government that still hasn’t abandoned its extreme climate policies, that still hasn’t committed to a Religious Discrimination Act, that still is a big-taxing big-spending machine well, seems to me that contrast is still remarkably stark.
CATHERINE MACGREGOR: Amanda Stoker, we really could go the entire program, we didn’t get to the role of the military in the Constitution but again, wonderful for you to join us. Thank you for joining the MacGregor Angle, I know our Sky audience love you and we’ll talk again I trust over the course of the year. Thank you very much.
AMANDA STOKER: Lovely.