The High Court's workplaces decision: implications for our federal system.

• Author: Flint, David
• Pages: 33(11)

THE FUTURE OF THE FEDERATION

"We need a new vision splendid," argued Australian Democrat Senator Andrew Murray recently. He said that our political and social contract is under serious strain, and not just because the Commonwealth has the money and the states want to spend it. He believes that some of this strain comes from our "creaking constitution and institutions", and the consequent need to modernise our governance. He also blamed the "centralising tendencies" of the Howard Government.

He was critical of any "mere managerial" solution, the principal example of which he says is the action plan recently proposed by the Business Council of Australia (BCA), (1) which has a focus on efficiency, and which sees no need for radical changes to the powers of the states and the Commonwealth or for any major change to the constitution.

No reform of the Australian system will be successful, he believes, unless it accommodates revised checks and balances. "I'm talking political economy, a holistic approach," he writes. "You cannot fix the economic or the social effectively without also fixing political governance. And that means reassessing the constitution, the separation of powers, a republic, whether the federation should stay, and, if it should, in what form, and the powers that states and the Commonwealth should each have."

He proposes another convention, but this time a standing convention for say, 10 years, with a permanent secretariat and with a budget sufficient to allow for "full engagement and dialogue". This should be supplemented by a "university-based institute for constitutional change, producing discussion papers and fostering public awareness and debate".

These arguments are in the tradition of those who say our constitution is creaking under the strain, shows its age and is in need of reform. What they really want is a constitution radically different from that which our founders chose. In political and media debate, "reform" does not necessarily mean improvement. In the Australian constitutional context, "reform" has long been shorthand for centralism, and in recent years has been extended to a vastly increased political role for the judges as well as, of course, some sort of a republic. It often includes the removal of checks and balances, such as the states, the Senate and our oldest institution--and the one above politics--the Australian Crown. In addition, it usually depends on substituting judicial orthodoxy with a degree of adventurism, even where this is disguised in a genuflection towards literalism.

The age of our constitution is used as part of the armoury of the "reformers" who are wont to qualify it as coming from the "horse and buggy" era. They should be reminded that the American constitution is twice as old as Australia's, and that few Americans would call for a drastic change to it. Indeed, constitutional longevity in a world where constitutional instability is the norm should be seen as a virtue and not a vice. As John Stone argues, ours is one of the finest--if not the finest--constitutions in the world. (2) The Australian people were more fully involved in the development and adoption of our constitution than any other people in the modern world. They determined the essence of the new nation in the constitution's covering clauses when, "humbly relying on the blessings of Almighty God", they agreed, in each of the colonies, "to unite in one indissoluble Federal Commonwealth under the Crown ... and under the Constitution ...". (3)

The intention of the founders, and, most importantly, the people, was very clear. Had the centralist politicians and the judges kept more to that intention, many if not most of the problems of overlap, of centralisation and of financial irresponsibility by the states would probably have been avoided. That intention was surely that the external affairs and spending powers of the federal government and parliament be limited to the list of powers which the people agreed should be of federal concern, and that the states should be principally dependent on taxes they raised themselves. The intention was not that the states be reduced to their present mendicant status, but that they should continue as they originally were: self-governing communities now united in a federation where the federal entity had limited enumerated powers.

The problem today is not so much in the constitution; it is in those who have effectively changed it without seeking the approval of the people, and in the knowledge, it should be noted, that the people would have been most unlikely to agree. The answer is certainly not in the dissolution of the states, the substitution of regions even more dependent on the Commonwealth, in the transfer of even more powers to the Commonwealth, in a vast increase in the power of the judges to govern us through a bill of rights, or in the grafting of some unspecified republic onto our constitution.

In the meantime, the consequences of the present unsatisfactory situation can be considerably mitigated by sensible working relationships between Canberra and the state capitals, such as those that seem to have been reached recently. But, above all, what is needed is a return to the principles of the constitution of our one indissoluble federal Commonwealth under the Crown--principles to which the Australian people have given their consent and which they have so regularly affirmed in a series of referenda.

THE FEDERATION IN CONTEXT

The Australian federation is not some easily disposable appendage, some burden, which good sense demands we quickly remove. It is not only part of our history; it remains one of the pillars of our nation. It flows from, and is closely inter-related to, each of the other pillars. Indeed, the federation and its institutions cannot be understood without placing them in the context of those other pillars, four of which came with the settlement in 1788. To say that is to denigrate neither the Aboriginal history of this continent nor the Aboriginal people. But modern Australia began...