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Constitutional Failure

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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  1. tom baxter

    An interesting opinion, but as a person born in Queensland nearly 60 years ago I do not share it. The powers our states have give us a measure of diversity impossible under a totalitarian federal regime, whose many policies the average person may not agree with. There are many nations on earth that have the state based model and many of them have the highest standards of living in the world, just like Australia does. I have lived in WA. and for a few years in fact. I was not happy with some of the different laws but I adjusted to them quickly enough. I always had to option to leave if I found them intolerable of course.

    –” 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!–”

    This is not a problem unless you hop from state to state all the time. Or have a career that necessitates you to deal across state lines. In the latter case I would consider it just a part of the job, and increase my service fees accordingly.

  2. Neil

    The West, I think, is a failed state. Forget Russiagate and Chinagate – the West is a joke. And it’s only a matter of time before these politicians metaphorically ‘hang’. The political class as a whole and the corporate class. Hopefully, peacefully

  3. Jack Cade

    Scott Morrison, crowing about cyber spying, has
    refused to say which state is doing it. Since he and President Fart have been quite open in naming China with respect to anything that happens, a cynic might conclude that Scummo won’t name the cyber spy because it’ might JUST be a trusted ally. With barley to sell..,
    Nudge nudge. Wank wank. Say no more.

  4. Neil

    Prediction – this is America’s Soviet moment. The US does not exist as a functioning Union by next year and the American empire rapidly unfurls – military bases, alliances etc,

  5. Matters Not

    Interesting article Rosemary. And while one can only agree that knowledge of the Australian Constitution (as written) is somewhat limited that deficiency is compounded courtesy of judicial interpretations (sometimes called activism) plus some practical considerations over time. For example, Section 51 of the Constitution enumerates the legislative powers of the Commonwealth. Those not specifically enumerated were intended to remain with the States – what we call the residual powers. Seems simple enough – until one considers Section 96 which provides the Commonwealth with the power to grant money to any State.

    Because ‘education’ was not specifically mentioned in Section 51, the power to fund, legislate, regulate, provide etc was supposed to remain with the States. A good example of the residual power. And it did reside (remain) for a time – including legislation that regulated Universities. But with the expansion of secondary and higher education came increased funding demands. Enter Section 96. Enter the Commonwealth with its almost unlimited funding power. Witness the (limited) exit of the States – at least as it applied to certain sectors. The States simply couldn’t afford to object to Commonwealth funding. While Section 51 remains, it’s now been emasculated. So much so, that the Commonwealth speaks of having responsibility for private schooling while the States are responsible for public schools.

    Further, while States kept the power(s) to set and develop the curriculum, train teachers, as well as to evaluate learning outcomes and then to award credentials etc that is also now (largely but not completely) part of the past. And for a an increasingly mobile population that’s desirable.

  6. Matters Not

    tom baxter re:

    not a problem unless you hop from state to state

    Certainly a legitimate point of view and one that has currency in some circles – usually within the LNP. The argument in favour of State differentation is often expressed in terms of the need for competition among and between the entities Supposedly, it’s through ‘competition’ that efficiency gains will be realized and with that efficiency will come increased investment, more employment opportunities, greater wealth for all etc and joy will spread across the land. That’s the theory anyway.

    Those against, point out that this pursuit of competition will result in a push for lower taxes which will in turn lead to reduced services translating to lower wages, lower standard of living etc. Tom, being from Queensland, you might remember the times (try the Joh years and before that the Labor years) when Queensland’s spending on education was the lowest among the States (per capita) while spending on the police force (per capita) was among the highest . And for this in the most decentralised State where efficiencies of scale were not achieveable, it was somewhat remarkable. And yes – taxes were lower. Even attracted retirees from interstate (to escape death duties).

    I do – but then again I’m a little older than you.

  7. Florence Howarth

    Could one say the government is now treating us as they have Indigenous people for the last two centuries? Not listening, trashing the constitution, father knows best manner. They no longer care what we think.

    The biggest problem is not the constitution but politicians trashing it.

  8. Matters Not

    Florence Howarth, the Constitution we have is well and truly past its ‘use-by date’ – at so many levels and in so many different ways. Is and was a (bastard) product of its times. But it would take a revolution of sorts to begin again with a blank sheet. And that’s most unlikely. Guess we will continue to muddle through and live with those consequences.

    Of course, we are not alone. Look at the United States and see the constitutional breakdown there. What was designed to prevent the emergence of an autocrat has failed after all those years.

  9. tom baxter

    Matters Not Re:

    “Tom, being from Queensland, you might remember the times when Queensland’s spending on education was the lowest among the States (per capita) while spending on the police force (per capita) was among the highest”

    Yes I certainly do, and we had a corrupt police force and a decent education system, which on the face of it lends credence to the theory that the more government concentrates on a sector of public affairs, the more inefficient it becomes. Where the money goes, police boots on the ground for example, certainly matters, but it is not always directed in an appropriate way. I personally have worked in government and can attest that it’s a great place to bludge and to fill your boot with ‘stuff’.

    The less government the better IMO but not if it is replaced by entities that bribe the politicians and then overcharge for services. Bob Hawke, an obviously ignorant thug of a unionist, ended his life with a huge net worth. His home alone sold for over 15 million, not bad on a prime minister’s pension. John Howard likewise did quite well going into positions with Ramsay healthcare, now chairman of another Ramsay division, and with the Ethanol magnate Dick Honan , both of which benefited greatly from Howard’s policies on repat hospitals and ethanol subsities.

    At that level of play there are no brown paper bags, just million dollar a year seats on the boards of big corporations after retirement, where you become an example for up and coming prime ministers as to what’s on offer if you play your hand right. An investigation of Ian Macfarlane’s CV after he left the reserve bank is in itself an interesting journey. Another insider that is being remunerated quite nicely from the companies that profited under his tenure.

    That is how capitalism works in its purest form, and to believe any different I leave to those who run to and fro election booths every couple of years with the firm belief that “They have been in too long and We need to change things!!!”

  10. Josephus

    Having had to use my end of life legal documents lately across state borders I cannot find consensus on whether docs confer different rights Or to different degrees in different jurisdictions, or if what is accepted in one is honoured in another.

  11. Matters Not

    Tom Baxter – thanks for your response but I feel it would be unhelpful for all concerned to engage further.

    What with your claims that Hawke being – an obviously ignorant thug of a unionist plus your claimed personal experience outlined as – worked in government and can attest that it’s a great place to bludge and to fill your boot with ‘stuff’ – I doubt we could have any fruitful exchange(s). Not forgetting the exaggerated claims of – million dollar a year seats on the boards of big corporations. Really? Million dollar seats?

    Seems to me that you look at the world through jaundiced eyes and nothing I write will change that. Besides I gave up counselling some time ago. But have a nice day.

  12. Stephengb

    As an immigrant from UK, I find it incredible that everyone of us are subject to two political hubs and as a consequence two sets of laws that seem to overlap in the most bizarre ways.

    Having actually lived in Vic, Qld, WA, ACT and NSW, and actially worked in every state and territory, I agree with RJ36, it’s a bloody mess.

    In this modern age there is a absolutely no requirement for each State to have its own Parliament, unless each State also issued it’s own currency and then there would be No need for a Federal government either.
    Yes I realise that would cause more issues than simply doing away with State legislators, then States rights could be binned as well.

    Having said that I am grateful that the current Labor held States did not let that fool the ‘prime muppet’ have control of covid-19 pandemic, because if it were left to the current LNP in federal governance we would be be no better ofv than the USA or UK.

  13. andy56

    The constitution isnt the problem. It can change or be modified. Its the failure of the political class to get its house in order. Its a failure of the political class to have vision. Its a failure of the political class to understand the role of government beyond staus quo. Its the failure of the political class to abandon ideology and consider proper engineering principles to mold the economy.
    Above all, its a failure of the electorate to understand when they are being shafted and still vote for the bigger shaft.

  14. andy56

    Stephenb, yes i agree we are over governed. I have one issue though, these guys are so totally f#@#$%g incompetant, and have been for over 100yrs, you shiver if any level disappears. Not saying all but they seem to take it in turns.
    There are lots of issues that need to be fixed, i dont know if the train gauge issue has been resolved, before we raize any level of government. I know its contra logic, but until we know how to fix this system, whos to say we wont stuff the next?

  15. Jack Cade

    The problem with the populist demagogues that have pushed the ‘politics of the pub’ into the public arena – Trump, Bolsonaro, etc, is that everybody believes politics is broken – and so it is – and desperate voters do desperate things. The politics of the pub do not carry over into the parliaments.
    But it takes intelligence and vision to transform politics, and there are no Roosevelts, no Attlees, no Whitlams any more. There is only revolution, and THEY are mightily equipped to crush one.

  16. tom baxter

    Matters Not:
    Tom Baxter – thanks for your response but I feel it would be unhelpful for all concerned to engage further.

    Well you are true to your word, you certainly didn’t engage, just launched into a weak strawman attack. But it matters not. Anyone who has worked in government knows what I reference is true. I was a BLF shop steward in the 1980’s working for the State Gov BMA in Perth. We built the schools and refurbished the hospitals, courts, jails etc. Back in the days when Hawke sold out his Labour roots with the the pilot’s union dispute.

    I left the industry after that because the writing was on the wall and I went on to build my own business, knowing that if you can’t beat them, join them. The previous Hawk won election was the last election I ever participated in.

    As for the remunerations of Chairmen, well the devil is in the details.
    “former Merck & Co. CEO P. Roy Vagelos earned more than $20 million, mainly in stock options, as chairman of a single board in 2014.” citing: investopedia.

    Enjoy your next trip to the polling booth mattersnot, voting for whatever side of the corporate coin you put your faith in 🙂

  17. tom baxter

    Stephengb: “Having said that I am grateful that the current Labor held States did not let that fool the ‘prime muppet’ have control of covid-19 pandemic,”

    Yes I agree, and one of the best examples of having state governments. Another was their power to enforce the recent consolidation of local councils, and subsequently, in Queensland, investigating them for fraud and exposing and prosecuting the corrupt mayors and councilmen.

    You can’t manage every little region effectively without local governments and I can only imagine the mess the current federal government would have done in place of the concise action taken by the state. The federals couldn’t even face up to the reality of the bush fires that ravaged the nation. They sat in Canberra bitching about it to the media, or in the P.M’s case, on a Hawaiian beach, while the state governments were busy coordinating the movement of firefighters and other resources between themselves to meet the threat.

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