Post WorkChoices: beyond the battle for states rights

The accuracy of this observation is now on bright display.

It appears that, constitutionally speaking, the Australian federation is at tipping point. No longer can anyone claim there is something called "states' rights".

The idea of a federal structure is to ensure that power is diffused among different tiers of government, so as to protect individual liberty from a strong state.

However, except in the most extraordinary circumstances one can no longer expect to be able to run a successful constitutional case so as to preserve the power of the states vis-à-vis the Commonwealth.

In any regard, leaving aside the growth of Commonwealth power in areas such as the environment (largely gained from the foreign affairs power), the states have been quietly transferring powers to the centre in a number of areas ranging from mutual recognition of trade qualifications to fighting terrorism to even investigating train accidents.

There is a strong argument to say that the reality of globalisation - from the ease of international travel, to global markets, through to the Internet and YouTube is now the greatest protection against tyranny.

Rather than worrying about the death of states' rights, it is now the time to expedite the work being done through the Council of Australian Government process and make the Commonwealth responsible for matters such as occupational health and safety and workers' compensation, so there is one clear entity, clearly responsible to the electorate for the regulation of business.

Where necessary, the states should transfer the powers to the Commonwealth to allow this, as they did to remove doubt about the Commonwealth’s capacity to legislate for the formation of corporations. This would not only aid international competitiveness, but cut red tape.

Various Commonwealth mnisters have floated Commonwealth takeover of schools and hospitals.

A constitutional convention, called for by parties from state premiers to the Business Council of Australia could be held, to determine the role of states judged against the subsidiarity principle of the European Union, which holds that decisions are taken as closely as possible to the citizen, with central government not acting unless it is more effective than action taken at lower levels.

This would necessarily involve considering the role of local government within the Australian federation.

Rather than mourning states' rights, these steps would be a better way of ensuring a modern and relevant federation post the WorkChoices decision.