Victorian Labor bid to amend constitution to keep state ownership of SEC may end up in high court, says expert
A promise by Victoria’s premier, Daniel Andrews, to amend the state’s constitution to protect public ownership of the revived State Electricity Commission could be the subject of a future high court challenge, a constitutional law expert says.
Andrews said on Tuesday a reelected Labor government would introduce legislation to amend the constitution to ensure the SEC – which was privatised in the 1990s – could not be sold again.
“Imagine how much further along the transition, the reform, the change … we would be today, if these assets had not been sold,” he told reporters.
“You can’t change what was done in the past. But we can bring back the SEC better than it’s ever been. We’ll also protect it from a future Liberal sell-off – that’s what the constitution is for.”
Andrews said Labor would seek to amend the constitution via a special majority, meaning 60% of members of both the lower and upper houses would need to pass the legislation. This is a similar benchmark used for constitutional amendments relating to appointing the state’s governor. Andrews said future governments would also require a special majority to scrap the constitutional amendment but conceded it was not impossible.
“We would ask that parties respect the mandate,” he said.
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It is not the first time Labor has protected its legislation in this way. Ahead of the 2018 election, the Andrews government vowed to amend the constitution to insert existing legislative bans on fracking and coal seam gas. The amendments passed the parliament last year.
Prof George Williams, a constitutional law expert from the University of New South Wales, said entrenching a policy outcome in a state constitution was “unusual”.
“It’s certainly not common in other state constitutions and that’s because constitutions typically deal with the mechanics of government – how parliament, courts and governments run,” he told Guardian Australia.
“But there’s no wrong or right answer here.”
However, Williams said it was not guaranteed the “special majority would stick for future parliaments” and warned there could be high court litigation.
“If at a future time the government didn’t have the required [special]
majority and wanted to change it, it could well be challenged,” he said.
“It’s a contested area of law … normally one parliament cannot bind another – it’s democracy.”
In October, Labor pledged to revitalise the SEC in a bid to spearhead renewable energy projects. Andrews said it would create downward pressure on power bills, cut emissions and create 60,000 jobs. But the opposition argues there is no evidence the policy would lower power bills.
The revived SEC would be responsible for building new renewable energy projects to help the state achieve 95% renewable energy by 2035. The projects would replace the capacity of the coalfired Loy Yang A power station, which operator AGL Energy has announced will close in 2035 – a decade earlier than planned.
The SEC was first set up in 1918, and by 1972 it was the sole agency in the state for electricity generation, transmission, distribution and supply before it was privatised by former Liberal premier Jeff Kennett to pay for debt accumulated under the previous Labor government. Kennett has labelled Andrew a “socialist” premier over the revitalisation plan, arguing it is financially irresponsible given Victoria’s debt.
Andrews made the announcement in the marginal seat of Morwell, in the La Trobe Valley, which has been the home of the state’s coal industry. Labor is hoping to regain the seat held by the independent MP Russell Northe, despite the Nationals being favourites to win.
Meanwhile on Tuesday, Liberal leader Matthew Guy announced a $5m overhaul of Federation Square to transform undecked railway land into urban parkland.
He said Federation East had been a wasteland for 20 years and likened the new project to parkland on the Brisbane River.
“We’re going to do the same with the banks of the Yarra in Melbourne,” he told reporters.
“It’s going to be my mission in government to make Melbourne the world’s most livable city.”