The keys to the constitution

Under our constitutional system, only two institutions straddle the Commonwealth-state divide. One is the Crown, the other is the High Court. The Crown, our oldest institution remains unquestionably above politics, and the High Court certainly eschews party politics. Unfortunately, some High Court justices have espoused policies, no more so than in some of their more controversial decisions during the 1990s.

One policy which has dominated the court since 1920, and for which there is no constitutional authority, is centralism, once cunningly disguised as an objective exercise in literalist interpretation.

Whether or not we agree with the changes in the Howard Government’s industrial legislation, it is difficult not to be concerned as to the consequences of the High Court decision on the future of the federation. The court indicated, with Justice Kirby and Justice Callinan dissenting, that the Commonwealth's use of the corporations power is almost without limits. The court had two decades ago come to a similar conclusion with respect to the external affairs power.

No one could seriously say that this vast expansion of federal power was the intention of the founders, or that it reflects the wishes of the Australian people.

The latest decision reflects a centralist trend which dates back to the High Court’s 1920 decision in the Engineers’ Case, which effectively reversed not only the decisions of the 19th century constitutional conventions, but also the decisions of the people. After all, it is the Australian people who have approved and reaffirmed the proposition that Australia should be an indissoluble federal (note “federal”) commonwealth under the Crown and under the constitution.

Addressing the 14th Conference of the Samuel Griffith Society in 2002, Professor Geoffrey de Quincy Walker said of the Engineers' case:

[It] inaugurated a method of one-sided interpretation that reversed the polarity of the Commonwealth Constitution in a way that contradicted the document's plain intention and ignored the first principles of legal interpretation. It has violated the wishes of the Australian people as consistently expressed in constitutional referendums, and mocked the sovereign power recognised in them by s.128. Engineers’ literalism has destroyed the Constitution's self-adjusting "reflexivity", and eroded the fundamental right of State communities to govern themselves. It has denied the people the advantages of competitive federalism and increased the burden, cost and remoteness of government. Since the 1970s especially, it has pushed the constitutional order to the brink of breakdown.

Professor Greg Craven wrote in The Australian on November 17, 2006, “the states should be in absolutely no doubt” that this latest decision “is a shipwreck of Titanic proportions. Not since the 1920s has the court struck such a devastating blow against Australian federalism …”

“How,” he asked, “a court can weigh every tiny word of a constitution without grasping the central premise that it was meant to create a genuine federation must baffle historians and psychoanalysts alike”. This is, he said, “the greatest constitutional disaster” to befall the states in 80 years.

Reflecting the warning of Justice Kirby in his strong dissent, Professor Craven warned that the federal authorities now have an “open cheque to intervene in almost any area of state power that catches its eye, from higher and private education, through every aspect of health, to such matters as town planning and the environment”.

That this should worry conservative constitutionalists is well explained in the dissent of Justice Callinan. That this should also worry conservative politicians and their supporters was demonstrated when P.P.McGuiness, writing in The Australian on November 15, 2006, warned that this decision could and probably would work both ways. A future government could attempt to regulate prices and incomes, re-regulate the labour market and if socialism becomes fashionable again, effect the nationalisation of any sector of the economy.

He wrote that the majority had, “destroyed our federal system of government”. They had effectively abolished any logical or sensible limitation of the federal powers.