Scrap the states? Would we have to scrap the constitution too?

Another new year brings another release of previously secret Cabinet documents by the National Archives.

In response to this year’s release of Cabinet Documents from 1984-5, Bob Hawke, then Prime Minister, has repeated his call for the scrapping of the States. He argues that one of his biggest regrets is his failure to implement national protection of Aboriginal land rights because of Western Australia’s opposition. Scrapping the States is a call that Hawke has made before – in his 1979 Boyer lectures he argued that the scrapping of the States would facilitate efficient and responsive government reform.

It’s a call that is not uncommon or unexpected from a federal Labor leader. Labor can be defined by its commitment to centralisation and harmonisation of standards and services (although increasingly we are seeing similar calls from the other side of politics).

It’s also a call that reflects current attitudes across Australia, according to the results of a nationwide Constitutional Values Survey undertaken by Professor A J Brown from Griffith University. In the 2012 survey, only 43.7 per cent of respondents thought it was better for decisions to be made at the lowest level of government competent to deal with the decision. This fell from 51.8 per cent in 2008. In 2012, 45 per cent who thought it was better for as many decisions as possible to be made at the higher levels of government whereas only 41.1 per cent thought this in 2008.

Expectations about quick reactions by ‘government’ to emergent issues – at the local, national and international levels – have also led to criticism of the current federal system. There have also been calls for the abolition of the States from business and industry who seek less bureaucratic duplication and greater harmonisation of laws and regulations in the name of efficiency and clarity.

Not everyone is convinced that federalism and the States need to be scrapped – maybe tweaked a bit to work better – but scrapping the States risks scrapping the many benefits of decentralised federal systems. (When I say ‘not everyone’, I include myself. More about my views can be read in my joint contribution in The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives.) Federalism provides opportunities for competition between the States to drive policy innovation, for policy experimentation, for local diversity to be accommodated in policy choices and for more democratic participation by the community.

Putting aside the arguments for and against scrapping the States, it is worthwhile to pause and consider whether we can scrap the States under the Constitution, or whether, to scrap the States, we have to scrap the Constitution itself.

‘An indissoluble federal Commonwealth’

It may very well be that abolishing the States would not be possible under the Australian Constitution as it presently stands. Our Constitution is not a stand alone document. It is attached to an Act of the UK Parliament: the Commonwealth of Australia Constitution Act 1900. While we don’t have a preamble to our Constitution, there is a preamble to this Act, and it provides:

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

The term ‘indissoluble’ was added at the very last constitutional drafting convention in 1898 - intended to avoid the experience of the United States civil war and introduce permanence and indestructibility to the Australian federation. (Professor Helen Irving has written a great piece on the drafting and history of the term which can be accessed here.)

Would it be possible to abolish the States in the Constitution? Or do the words ‘indissoluble federal Commonwealth’ in the preamble to the Commonwealth of Australia Constitution Act protect the continued existence and operation of the States in our Constitution, at least in some form?