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

·         the provisions that ensure the smooth operating of the mechanics of the federation – for example, dealing with inconsistent laws and preventing discrimination based on place of residence;

·         the provisions that provide for the creation of new States; and

·         the referendum provision that requires the consent of not only a majority of voters across Australia, but a majority of people in a majority of the States.

Drafting the amending Bill to scrap the States would be quite a task in itself. In short, scrapping the States requires scrapping the pervading idea of the Constitution.

What would we replace it with? Important decisions would have to be made regarding how the new national Parliament would be structured in the absence of a division of powers between the Commonwealth and the States. If we remove the federal feature of the Constitution would we need or want to replace it with anything, and if so, what? A system of regional councils? Different models for representation in the federal Parliament? And that’s just the creation of the draft amendment Bill – it then has to get passed!

Amendment under our Constitution is no small feat – only 8 of the 44 attempted constitutional changes have been successful in the past. Generally those changes that have sought to increase federal government’s power have been unsuccessful – it would seem that the Australian voters are wary of power grabs by the central government.

Under the referendum provision (section 128 of the Constitution), all of the changes – the repeals and amendments – would need to be passed by an absolute majority in both houses of the Commonwealth Parliament (or in rare cases, through one house twice) and then put to the electors in a referendum. Generally speaking, to pass at a referendum, a Bill requires the support of a majority of voters across Australia, as well as a majority in a majority of States – so a majority in 4 of the 6 States. However, there would be an additional hurdle for a referendum abolishing the States because at the end of the section there is a part that says no alteration ‘in any manner affecting the provisions of the Constitution in relation [to the States], shall become law unless the majority of the electors voting in that State approve the proposed law.’ It is hard to imagine an amendment that affects the States more than their abolition – and thus it would be required to be passed by a majority in all of the States.

What then for the federation?

So the long and short of it is that scrapping the States is not as simple as it may sound – a good sound bite for New Year’s Day perhaps, but a significant constitutional challenge. It is a reform that at the least would have to be supported by the Commonwealth Parliament, a majority of voters across Australia, and a majority of voters in all of the States. There is also a strong argument that it would require the consent of the State governments to change the preamble to the Commonwealth of Australia Constitution Act 1900. State governments agreeing to abolish themselves? It all sounds a little surreal. (It should be noted that former Queensland Premier Peter Beattie has come out in support of Hawke’s idea to abolish the States. One is left wondering whether Beattie would have had the same view when he was Premier.)

What then for the federation? Should we remain satisfied with what we have? Rather than getting bogged down in a conversation about abolishing the States, a more productive conversation is to consider the significant reforms that could be effected with no, or very little, constitutional change. The Commonwealth could give the States greater tax room and pave the way for the decrease in the significant vertical fiscal imbalance that has meant the Commonwealth can dictate much of the States policies in areas such as health and education though its fiscal powers. The distribution of powers between the Commonwealth and States could be rethought – where is it appropriate for national laws to set universal standards and where is it appropriate for States to be responsive to local needs and tailor policies and laws to local concerns? A more transparent and open framework could be created for the co-operative federal processes, such as the Council of Australian Governments, to help in their effectiveness and our confidence in inter-governmental cooperation.

Federalism reform – under the moniker of ‘cooperative federalism’ – was one of the defining platforms of the Rudd Government when it swept into power in 2007 – although during his term there was only small progress with some reform achieved through the Intergovernmental Agreement on Federal Financial Relations in 2009. Since Gillard has taken over the leadership, it has largely dropped off the political agenda.

Given that there are many reforms we could implement with no, or little, constitutional amendment, it seems that a conversation about scrapping the States is all a bit premature. Let’s talk instead about making our federation work for us.