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The keys to the constitution

By David Flint - posted Thursday, 23 November 2006


Professor Craven said there is not the “least chance that Canberra will use these powers comprehensively to take over such policy nightmares as our health and education systems”. Instead, based on long practice, Canberra will employ its new capacity to “cherry-pick politically attractive items and to embarrass uncongenial state governments”. In other words, the politicians will, thanks to the High Court, be allowed to behave like politicians.

But what of the people

In the 1999 referendum campaign, I lamented the fact “most of the failed referenda which involved giving more power to Canberra have been in many ways overtaken by High Court decisions which have favoured the Commonwealth” (The Cane Toad Republic).

In handing down its decision on November 14, 2006, the High Court majority said the fact the people may have indicated their objection to a specific change is of “no assistance” to them. That is, the fact the people may have refused to grant some power to the Commonwealth is to be completely ignored.

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The result is that the High Court has abdicated much of its role as an important check and balance. As Professor Craven says, we no longer have “even a deeply biased constitutional umpire”. The High Court “has given Canberra the key to the constitution”.

What can be done?

The only hope seems to be in the premiers’ call for a constitutional convention. But if one is held, it must have nothing to do with that “arid and irrelevant” issue, to borrow Professor Winterton’s description of the head of state debate. I mean of course a republic. Nor should it be distracted by the question of a constitutional bill of rights which bears no relation to the federal issue.

In Twilight of the Elites, a book I wrote in 2003, I argued that rather than concentrating on removing the one part of our constitutional system which works , and works well - that is the Crown - any discussion of constitutional reform should be about the far more relevant issue: how to restore the federation.

Ideally, this convention could aim to propose amendments to:

  • ensure “vertical fiscal balance”, i.e. that the states are responsible for collecting most of their income and answering to their electors as to how they spend it (that they do not is the fault not only of a succession of federal politicians, but also state politicians and the High Court);
  • list those powers where state laws are to prevail. The absence of such a list allowed the High Court to launch its long adventure in forcing centralism on a reluctant nation;
  • cap the extent of the external affairs and corporations powers;
  • ensure that minimum bureaucratic overlap occurs in relation to powers the exercise of which are effectively shared; and
  • ensure the states are directly involved (and not just consulted) in determining the membership of the High Court. Why not, for example, allow each state chief justice or a nominee to join the bench in federal disputes?

How should the convention be constituted?

The success of the constitutional conventions after 1893 was at least in part because they were mainly elected. An advantage of the 1999 convention was that half the convention was nominated, but many of these were in effect ex officio. The premiers, prime minister and leading ministers should be there, alongside the elected representative of the people. Prominent constitutional lawyers from the academy, both in practice and those retired from the courts, should be available to give advice, either to the convention as a whole and to individual members, both orally and in writing.

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As to procedure, the governments should agree in advance that the principles of the Corowa Plan (PDF 48KB) should apply. This, proposed by Sir John Quick in 1893, ensured that the movement to federation was not bogged down in endless parliamentary debate. When the convention finalises its draft, say in 12 months, it should be made public and sent to all the parliaments for comment.

The parliaments and public should have, say, three months for comment, after which the convention would have a period (I would suggest six months) to consider all comments and to finalise the proposed changes. Following the Corowa Plan principles the proposal would then be included in a bill for a referendum.

The obligation of the Federal Parliament to do this would be moral rather than legal, the same sort of obligation their predecessors agreed to in the 19th century.

Adopting the Corowa Plan principles would ensure that the conclusions of the convention are put to the people for their decision, and not just ignored or pigeonholed.

The premiers are right to call for a convention. If the states are to be restored or are to be emasculated, that decision should only be made by the people in a referendum. It seems that a convention is the best way of assuring this.

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About the Author

David Flint is a former chairman of the Australian Press Council and the Australian Broadcasting Authority, is author of The Twilight of the Elites, and Malice in Media Land, published by Freedom Publishing. His latest monograph is Her Majesty at 80: Impeccable Service in an Indispensable Office, Australians for Constitutional Monarchy, Sydney, 2006

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