NEARLY all major reforms in Australia are done by Labor Governments. From aged and widows pensions and the PBS in the 1940s, through to Medicare and racial-discrimination laws in the 1970s, economic liberalisation and universal superannuation in the 1980s and now the National Disability Insurance Scheme.
Labor has got just four and a half months to get it into cement so it cannot be easily unwound by the Coalition.
Labor may as well bear the opprobrium of breaking a promise not to increase taxes. It has virtually no hope of winning the election in September, so it should salvage at least some legacy from its term in government.
The Coalition has agreed to a disability scheme, after all, the disabled and their families vote. But it has not agreed to the levy, which will give secure funding to it.
Without secure funding the scheme can be allowed to fizzle. Even with a levy, the scheme would not be totally secure. The Coalition chiseled away at Medicare from 1975 to 1983. Universal schemes are an anathema to conservatives. They think families should look after themselves and that government has no role.
Medicare has survived – if somewhat battered – because it is so popular. There is a selfish reason for voters liking Medicare. The disability scheme will not have that underpinning.
We could hope, however, that the scheme becomes underpinned by a sense of fairness and morality, so that it cannot be undermined by future governments.
The vicissitudes of life can be so random and unfair. People with similar levels of disability get hugely different treatment in Australia.
Those whose disability – say, severe brain damage — arises from medical negligence at birth can get millions. One child in the ACT, for example, was awarded $7.5 million by the courts.
But a child born with the same injury and the child’s family endure a life of privation.
People whose disability was caused by a traffic crash or even at work get payments that can help them get a more fulfilling life. People with the same disability caused by an accident at home or birth defect have a far more difficult time.
Services for the disabled are fairly woeful. Money cannot do much about the emotional strain on carers, but it can help with the financial strain and the unrelieved drudgery of caring.
And now we know where the money is coming from. Where is should come from – us, in the form of a half a percent levy. People should feel good about that levy, not feel put upon.
Indeed, there is no need to feel that this is an extra wasteful tax. In 2011 a Productivity Commission report found that a disability insurance scheme would ultimately pay most of its own way. Many disabled people are shut out of the workforce because they cannot get help and treatment. With the sort of tailored plans envisaged by the NDIS, many disabled will come into the workforce and pay tax and otherwise contribute to the economy.
These will be net jobs, not the artificial job creation of many projects which merely take jobs from one place to another.
The NDIS has great similarities with the gun-buyback scheme introduced by the Howard Government in the late 1990s. An increase in the Medicare levy funded something which was socially and morally worthwhile and also had some economic benefit in lower firearm deaths and injuries.
The NDIS should be a win all round.
DOT DOT DOT
It was a bit precipitous of Prime Minister Julia Gillard and Opposition Leader Tony Abbott this week to rule out a referendum on gay marriage in September.
As things stand, Australia is in a constitutionally uncertain position with gay marriage – unlike New Zealand and France which recently legislated for it.
A referendum would clear the matter up.
In Australia, the Constitution gives the Commonwealth Parliament the power “to make laws with respect to marriage”.
That does not give the Commonwealth Parliament power to define marriage. That is for the High Court to do.
So if the Commonwealth Parliament makes a law purporting to allow marriage between people of the same sex, it would be open to a High Court challenge.
Given the intensity of feeling about the matter it is almost certain that someone would challenge. It would be very messy.
The High Court could easily say that the word “marriage” in the Constitution means a union between a man and a woman. Of course, it might well find the other way, and hold that the word “marriage” these days can also mean a union between people of the same sex.
If the High Court held the word “marriage” meant only a union between a man and a woman, it would mean that only the states could legislate for same-sex marriage, and even that would be questionable because the states could not bind the Commonwealth in the application of its laws on pensions, tax, superannuation, access to partner’s records and so on.
Australia has a major constitutional difficulty with same-sex marriage, which is not well understood.
Most people quite wrongly think that the Commonwealth’s marriage power means it can legislate for same-sex marriage. But it can only legislate “with respect to” marriage, not to define it. The present section in the Marriage Act that purports to define marriage as a union between a man and a woman is almost certainly invalid, but it has not been challenged.
The Commonwealth constitutionally can, and indeed has, restricted the exercise of its marriage power to unions between a man and a woman. Such unions are obviously marriages. But whether a union between people of the same sex is a marriage within the meaning of that word in the Constitution is another matter. More importantly, it is a matter for the High Court, not the Commonwealth Parliament.
A referendum to change the Constitution to provide that the word “marriage” in Section 51 includes unions between people of the same sex would clarify the matter.
It would then be for the Parliament to legislate the details of who can marry as it sees fit.
The Founding Fathers, of course, had no idea that this question might arise. But it has arisen and it would be far better for such a question to be dealt with totally by the elected Commonwealth Parliament than be subject to a ruling by seven members of the High Court.
Moreover, it would be better to resolve the scope of the marriage power by referendum before any new same-sex-marriage legislation, rather than to be forced into a rapid correctional referendum after the event when many people’s married lives might be in limbo.
CRISPIN HULL
This article first appeared in The Canberra Times on 4 May 2013.