OUR founding fathers when debating the union of the separate colonies on the great southern continent into one country, had one major concern.
That concern dominated discussions and constitutional debates like no other. The concern was this: how to ensure that the newly formed central government did not overwhelm the autonomy of the States to govern citizens within their own borders.
The solution ultimately enshrined in the Australian Constitution was to create a bi-cameral parliament.
DISAPPROVE
The House of Representatives was to be a legislative body enacting laws for the whole of Australia.
The Senate, with an equal number of representatives from each State, would be a second house of parliament with the power to approve or disapprove all laws passed by House of Representatives, before they became law. It was thought that with each State having equal representation in the Senate, the rights and interests of the States would be safeguarded from domination by the central government.
Alas, the founding fathers did not foresee the evolution of the resultant federation, into a parliament dominated by two major political Parties with allegiances stretching across both houses, rather than allegiance to the whole of Australia by the House of Representatives opposed by an allegiance to the States by the Senate.
Currently the design created by the founding fathers, to protect the rights and interests of the States, is subject to a second twist: the balance of power in the Senate, and thus the whole parliament, is under the control of very small minority Parties.
To fight the bushfires recently raging across Australia, Prime Minister Scott Morrison set up an ad hoc cabinet comprised of the federal government and the Premiers of the States. This was a brilliant political move as it removed sniping and bickering from the agenda when dealing with a problem in which all parties are stakeholders.
PROHIBITED
After the bushfires, the makeshift cabinet was retained to deal with the COVID-19 crisis. Unfortunately, because of the constitutional dichotomy between a federal government on the one hand and separate State governments on the other, the body politic choir was in dissonance, each State singing from its own song sheet with the Prime Minister doing his best conducting the few notes common to all.
Queensland closed its borders for a period as did South Australia. At the present time Western Australia still has its borders closed. Because of the out of control COVID situation in Victoria, NSW has closed the border with its southern neighbor and Queensland has not only prohibited travel from Victoria but also because of the spread of the contamination from Victoria, travel from the greater Sydney region.
These latest brakes on the economy of the whole of Australia are a direct result of the stand out failure of the Victorian government to deal adequately with the pandemic as did the other States and Territories, which managed through timely and appropriate measures, to arrest COVID-19 and keep it under control.
The lockdown in Victoria is not only damaging the economy of Victoria but is detrimental to the whole of Australia, as Victoria accounts for 20 per cent of the total national economy.
Federalism is a two-edged sword. The promotion of co-operation is beneficial to all. The downside is that full scale co-operation fosters inter-dependence to the point where lack of appropriate action or wrong action by one participant, has a negative impact on all participants.
CHALLENGE
The tension of power struggles between the federal government and the States has never been resolved as attested by the number of cases litigated in the High Court under s109 of the Constitution which mandates the striking down of State legislation that conflicts with federal laws.
At the moment Clive Palmer has taken the government of Western Australia to the High Court, in a challenge to the closure if that State’s borders. s92 of the Constitution states “trade commerce and intercourse among the States shall be absolutely free”. The betting on whether the challenge will be successful is a 50/50 proposition. s92 has been litigated in the High Court 140 times. The latest significant case was decided in 1988, without an all-encompassing definitive interpretation emerging.
The US federation suffers similar tension between the powers of the States and the federal government. Trump, a Republican President, wants to implement strict law and order measures, whereas almost half the States which are controlled by the Democrats, (23 out of 50) are sympathetic to riotous Black Lives Matter demonstrations and have defunded or are working towards defunding police.
On the COVID-19 front, the situation in the US is disastrous. Dr Fauci, Chief Medical Officer under the Trump administration, calls out the lack of a co-ordinated and uniform response from the States as the culprit.
INIMICAL
In the face of recent bushfires, floods and now a virus pandemic, it might be time for a debate on modifying our federation to minimise the incidence of acts by one State that are detrimentally out of step with the interests of the majority of States.
The creation of a constitutional mechanism that would protect the rest of Australia from inaction or action by one State, inimical to the interests of the rest of Australia, would be a legislative draftsman’s nightmare, maybe even impossible to achieve, but in the face of the destructive forces unleashed by a once in 100 year calamity, is surely something worthy of consideration.
A fanciful suggestion to get the discussion rolling: hold a referendum to amend the Constitution by inserting a provision triggering an automatic reduction in federal funding, to a State that either fails to implement measures demanded by a majority of States, or conversely, implements measures vetoed by a majority of States.
Oh dear Juris, that’s bad news! You can tell I’ve no legal knowledge!
So nobody has ever suggested changing the power structure in the Constitution before! – However, I’ll add – ‘Never say Never’ – because an abominable State Government that radically harms the rest of us should be made liable for damages!
A Referendum to amend the Constitution that protects the rest of Australia from the stuff-ups of one really stupid State Government might be difficult to implement, BUT THIS AMENDMENT MUST OCCUR! One State cannot be allowed to cause economic or social carnage to the rest!
SO – the insertion of a provision to reduce Federal Funding to a delinquent State that makes outrageous blunders or which acts detrimentally against the measures voted for by the majority of States, makes prodigious sense! Hit the rogues where it really hurts!
The Indian constitution allows its national government to remove state governments for a variety of reasons; much in the same manner that State governments in this country can sack local councils. The abysmal performance of the Andrews regime is putting not only his State but the rest of the nation in jeopardy. If such provisions were present in our Federal Constitution there would be an almost unanswerable case for his government’s dismissal.
Changing the power structure in the Constitution is something that no one else has ever suggested as far as I know. Realistically it would be a huge move that would probably take decades before it is considered seriously, but hey, it’s worth starting to promulgate now.
What does Victoria do apart from spending other people’s money?
VIC and QLD budgets on the ropes. Massive debt. Labor can’t do maths.