Ten advantages of a federal constitution

So long as people are free, they will disagree. In that sense conflict is an inescapable part of civilised life. It is only authoritarian governments that see liberal freedom as encouraging social division and seek to abolish conflict by creating a false consensus.

Democratic participation in a federation is also enhanced by what is called the factor of ‘voice’. The basic logic of this idea is that the size of the political unit, as measured by the number of members, is a relevant variable in upholding the individual’s political sovereignty, quite apart from the opportunity for exit. If for any reason people are unwilling or unable to exercise their right of exit, they may be able to exercise ‘voice’, defined as activity that participates in determining political choices. Voice is more effective in small than in large political units — one vote is more likely to be decisive in an electorate of 100 than in an electorate of 1000 or 1 million. It is also easier for one person or small group to organise an influential coalition in a localised community than in a large and complex polity.

5. The federal division of powers protects liberty

The diffusion of lawmaking power under federalism is a shield against an arbitrary central government. By dividing sovereignty, the federal division of powers reduces both the risk of authoritarianism and the apprehension of it. The states help to preserve judicial independence and impartiality as well. The existence of independent state court structures prevents a national government from filling all the courts in the land with judges believed to be its supporters. That this aspect of the federal compact has not attracted much attention or comment in Australia is probably a function of history.

Newcomers from Europe often remark that Australians are too complacent about their freedom because they have never had to fight for it. That is not quite true, but the perception is generally correct regarding internal threats. There was no turbulent formative period in Australia comparable to the American revolutionary era, which seems permanently to have sensitised Americans to infringements of their freedom.

A succession of federal government attacks on civil and political rights over recent decades make such nonchalance now quite unjustified. Malcolm Fraser’s retrospective tax legislation, for instance, broke the constitutional convention against ex post facto lawmaking and led in due course to the widely criticised practice of ‘legislation by ministerial fiat’. Proliferating quasi-judicial tribunals took politically sensitive areas of law away from the ordinary courts, thereby depriving accused persons of due process and subjecting them to rulings by tribunals whose members may have been appointed precisely because they were known not to be impartial.

One of the most dramatic challenges to liberty was the Australia Card Bill 1985, which would have required citizens to carry a government number recorded on an identity card. Among its many other consequences, this legislation would have reversed the constitutional presumption that it is for the government to justify its actions to the people, not the other way around.

Especially arresting is the fact that such attacks on liberty have occurred, not during a war or similar calamity that might have excused or explained some of them, but in a period of peace and general prosperity. A country with a recent record like that has no reason to assume that its freedom and democratic rights are secure. It has much to fear from any further concentration of government power.