If the COVID-19 pandemic has revealed one thing, it is the total inadequacy of the Australian Constitution.
Like most people, I know a little about a lot of things and am slightly better informed than many in a few areas, while really expert in none! So I beg your tolerance for my presumption in writing this article.
I arrived in Australia when I was well, into my thirties and have been here for nearly 50 years, coming without the State-centric bias enjoyed by many Australians.
In fact, having been in the Northern Territory since before self-government, any sense of being locally controlled is not ingrained.
And I have studied, and for a few years practiced, law, so am possibly more familiar with the Australian Constitution than are many dinky-Di, born and bred Aussies.
And it falls far short of what is needed in the 21st Century!
Those who drafted the Australian Constitution, had the task of choosing which powers to take away from the existing states to transfer to the embryonic Commonwealth government.
They also fell over backwards to make sure that a minority of more populous states could not force changes to the Constitution onto the other states, while also allowing the range of powers of the Commonwealth to be expanded by mutual agreement between the States.
At the time of federation, the politics of the world was very different, and trade tended to be on a less global scale. Even within Australia, which regarded trade largely in the context of the British Commonwealth, it appears that it was necessary to ensure there were limited barriers to trade between the states.
But as corporations grew and expanded their power beyond state and country borders, the complications arising over conforming to varying state legislation became insurmountable. So the states and territories agreed to cede their powers in this area to the Commonwealth which was done by passage of the Corporations Act (2001) Cth.
This was far from being the only instance of having overarching legislation, and, when, in the 1970s, the Commonwealth decided to introduce Family Law legislation, WA – which has long wished to secede from the Commonwealth – decided it would not be be bound by federal legislation, and introduced its own Family Law Act.
The biggest nightmare in this context – for everyone, not just lawyers – is that there are 9 sets of legislation affecting criminal law, which makes crossing state boundaries a nightmare on occasion!
At the time that I was admitted as a barrister and solicitor in the NT, lawyers did not have an automatic right to practice in other jurisdictions – just as, years ago, those accredited as teachers, accountants, etc were only qualified within their local jurisdictions, and had no automatic right to have their qualifications accepted in other states – but, thankfully, we have moved on, at least in most specialist professional areas.
But this pandemic has highlighted the problems this causes when States and Territories have exclusive powers, which, in the case of State powers, cannot be brushed aside by the Commonwealth government.
So we are currently faced with a Commonwealth government, which has its attention firmly fixed on the national economy, in a stand-off with State governments, some of which understandably wish to keep inter-State borders closed in order to limit the spread of COVID-19.
I am not sure how the Coalition federal government was persuaded to establish a National Cabinet. While it has assiduously avoided including representatives of the Federal Opposition, it has, thankfully, included Premiers of varying political persuasions, which provides a much more balanced base from which to develop reasonably non-partisan policy.
It is, I suspect, the only reason that the national Coalition government was persuaded to introduce stimulus legislation, similar to that created by the ALP in the GFC, which has always been heavily criticised by Coalition members in the intervening years!
But this it not a GFC. It is not even a conventional recession.
It is a crisis occurring as a result of a Pandemic, occurring at a time when conservatives are refusing to accept the need for global action on global warming, and, tying the handling of the situation to a politically driven system, is heading us into total disaster.
Just as, in wartime on the scale of WWII, politics has to be set aside and the experts called in to provide clear advice, we now need to get right away from politics and opinions and work with facts. Otherwise the world we bequeath to our descendants will be in an appalling state.
And there is nothing in the Constitution to enable us to force the government to set up, not just a National Cabinet, but a non-partisan National government, whose advisors are not chosen heavily from the ranks of those whose wealth is derived from fossil fuels!
As a nation, we are struggling as a result of the lack of a plan to deal with a pandemic. It might be a once in a 100 years event, but if we are honest with ourselves, we have been dealing with crisis after crisis in recent years – driven by climate as well as economic and health issues – which should have alerted us to the need to planning for a catastrophic event.
The most recent 4 Corners program highlighted the dreadful situation being endured by those coping with winter, without proper resources, following the bush fires, ignored, despite promises of help, because the COVID-19 pandemic is dominating the headlines.
Governments are failing us – and part of the reason is that they are so intent on planning for people, without consulting with people. Ideology destroys awareness of the needs of those whose life style differs massively from that of the decision makers.
This is as true for our First Nations as it is for those whose livelihoods and homes were destroyed in the Black Summer!
The only good news for governments is that we cannot demonstrate en masse because of the pandemic restrictions!
We have a possibly once in a lifetime opportunity to refine plans to force governments to be more sensitive to the needs of those who would not necessarily vote for them!
Please let’s not waste that opportunity!
I end as always – this is my 2020 New Year Resolution:
“I will do everything in my power to enable Australia to be restored to responsible government.”
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