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Under a centralising Federal Government

By Bruce Haigh - posted Monday, 19 May 2008


Under a centralising Federal government, what is the future for States’ rights and the separation of powers embodied in the Constitution?

The short answer to that question is none. However, if the rights and needs of Australians are to be protected substantial checks and balances must be built into our political system.

The acquisition of power by the Commonwealth was underway before the ink was dry on the Premiers’ signatures in 1901. The process was hastened by two world wars, a Depression, a Cold War and a War on Terror. Climate change will complete the “transfer”.

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The Constitution is only as effective as people, the parliament, courts, the public service, the media, interest and religious groups want it to be.

I am no constitutional expert but to me the constitution seems a rotten apple, eaten away by a grubby political process that has had scant regard for democracy.

Over the past 12 years we saw a government, closely followed by a politicised public service, use the so-called War on Terror to increase power at the expense of the states.

The former Prime Minister, John Howard, aided by his close confidant and head of the Department of the Prime Minister and Cabinet, Max Moore-Wilton, acquired and stored power in the Prime Minister’s department and office.

All major immigration, defence, foreign affairs, industrial relations, health and education decisions were made by Howard.

But it was in the area of “national security”, through the head of the Australian Federal Police (AFP), Mick Keelty, that Howard most undermined the Constitution. Asylum seekers from Muslim countries were portrayed as likely terrorists and therefore a threat to national security. This was used as justification for holding men, women and children in remote detention camps, sometimes for years, in contravention of federal and state laws and International Conventions to which Australia is a signatory.

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Although cleared of all charges by the legal system, Keelty insists that Dr Haneef is still the subject of ongoing investigation by the AFP. A face saving device for an organisation which transgressed the law but which believes it is above the law.

The AFP has shown little respect for state boundaries and jurisdictions, treating state police forces as adjuncts to the AFP, which we witnessed with the Haneef affair and the betrayal of the Bali Nine.

Keelty is keen to establish the AFP as an Australian FBI and he may get his way with a Rudd Government that has demonstrated an equal naivety on security and defence issues as the previous government, not helped by their apparent comfort in relying on the same inadequate advisers and advice.

Only on the issue of water did we seen the states, through the intransigence of Victoria, assert themselves over the Commonwealth.

The Howard government tried to sell the issue of the Murray/Darling Basin as the key to solving the water problems of Australia. Only three states bought into that. There is no plan for the MDB and in any case the problem of securing a sustainable supply of water in Australia is one that requires scientific study and recommendations by a National Water Authority answering to the Commonwealth government.

Water does not respect state boundaries except in Tasmania and Western Australia.

Official levels of corruption and moral turpitude in Australia are at about the same level they were in Italy in the 1970s.

Australia is a conservative country, almost to the point of being hidebound. We have shown little inclination to learn from the past with the consequence that we repeat the mistakes of the past.

Howard bundled us into Iraq in much the same way that Menzies pushed us into Vietnam and for much the same sort of reason; to pay the US insurance premium. The failure of US strategy and Liberal Party compliance has worked to the advantage of the Labor Party with respect to both military adventures.

The framework within which Australian institutions both private and public operate, despite or perhaps because of corruption, is fiercely and determinedly mediocre; aggressively and angrily opposed to reform which is to take nothing away from Rudd’s Sorry Statement.

I quote an observer of the Australian political environment.

Traditional institutional devices have been weakened by the dominance of the Federal Cabinet over the Commonwealth Parliament, the strict discipline of federal parties and the declining ability of political leaders to meet all demands made of them. Open access to public records and official information is denied except to a privileged few whilst the courts intervene only when aggrieved persons challenge Commonwealth actions.

No Bill of Rights written into the Constitution safeguards the rights of citizens against authoritarianism and the workings of the Commonwealth bureaucracy are shrouded in mystery. Its administrative processes are descended from autocratic colonial regimes, borrow heavily from British practices and reflect Australian conservatism. Its position is ideal for the manipulation of mass society on behalf of established elites.

It is generally accepted that states’ rights and the separation of power provides a check, a balance against the unreasonable exercise of power by the Commonwealth and therefore a mechanism for the protection of the rights of the citizens of Australia.

They do no such thing as we saw over the abuse contained within Howard’s Terrorism legislation, the excessive powers claimed and exercised by the Department of Immigration and the police and military takeover of Sydney for the APEC Conference in 2007.

The only protection for citizens and others living within the jurisdiction of Australian law is, as noted above, a Bill of Rights. As we have observed over the past 12 years other existing mechanisms are weak and unreliable.

To continue:

The long-run tendency is for the Commonwealth to pre-empt an activity once it has gained a substantial foothold, whatever the original reasons for its entry. The Constitution permits the Commonwealth to enter many fields already occupied by the states; Constitutional amendments have transferred state activities to the Commonwealth without conferring a legal monopoly; the states have voluntarily allowed the Commonwealth to take over some of their activities or to provide substantial grants to them for their activities; the Commonwealth has by-passed the states by providing services direct to the public in traditional state activities.

Closely allied with these developments has been the considerable growth of co-ordinating and advisory committees and conferences with membership drawn from the organisations and interests most affected by Commonwealth aggrandisement and pre-emption …

Co-operative federalism suffers less from the performance of similar functions than from the financial inequality between the Commonwealth and the states … The financial supremacy of the Commonwealth enables its programme to receive priority over state demands. Whereas the states have little control over Commonwealth activities, the Commonwealth makes a thorough examination of state programmes …

In the absence of war and depression, it is possible that the growth of the Commonwealth would not have become so marked.

This latter point was certainly recognised by Menzies and Howard who skilfully used the threats contained within the Cold War and the confected threats of the Terror War to extend the power of the Commonwealth and through adaptive bureaucratic structural arrangements their own hold on power and electoral appeal.

Finally:

More serious may be the distortion of public needs by the Commonwealth’s financial superiority and political manoeuvring, the misallocation of resources through inadequate and superficial co-ordination and co-operation between public authorities and private enterprise, duplication and waste of effort by conflicting or competing authorities, and generally inefficient government administration as a result of concurrency.

The remarkable aspect of this analysis of federal/state relations is not in its acuity but in the fact that it was written 42 years ago by Gerald E. Caiden who was then a Research Fellow at the ANU.

That analysis and much more appeared in the book The Commonwealth Bureaucracy published by Melbourne University Press in 1967. Caiden is now the Professor of Public Administration in the School of Policy, Planning and Development at the University of Southern California. He is best known for his research on administrative and public-sector reform, corruption and administrative ethics and culture. To this end he has published 30 books and upwards of 260 papers.

Personally I find the relevance of his analysis rather frightening, although not surprising. How can it be that in 40-odd years there has been no reform, no streamlining of federal/state relations? The only change has been a sneaky and surreptitious sucking of power from the states by the Commonwealth.

No matter how we might debate best outcomes in any future power sharing arrangements between state and Commonwealth government’s the significant imperative of climate change will over-ride that debate.

Climate change will force even the most altruistic, decentralised, power sharing democracy to centralise administrative arrangements in relation to husbanding and allocating scarce resources.

How long will governments be able to leave the allocation of energy to the private sector? The arrogance of price gouging by oil companies in Australia is only a foretaste of behaviour to come as shortage offers increased scope for disproportionate profit.

The storage, management and allocation of scarce water resources will need to be a nation-wide task particularly in Australia. As I write, the major irrigators and banks are moving to corner the market on water through the licensing system that greed and lack of common sense has foisted on much of eastern Australia.

The intention of the major irrigators is to get enough licenses to ensure a minimum supply of water in times of shortage. They also plan to spread their holdings in order to increase the possibility of gaining access to commercial quantities of water. Any excess in year will be available for lease. The speculators hope to create a profitable market in water.

Buying licenses from smaller producers will make available cheap land to bigger producers which they can lease back to skilled but cash strapped smaller producers, buy the shareholder crop and by so doing not only reduce their own risk but ensure a return through the license.

For banks the acquisition of water licenses represents an investment against which they can borrow, lend and trade. Controlling water will confer power.

The head of treasury, Ken Henry, in my opinion is wrong in claiming that the market will regulate and conserve water through price. It will not. It will create winners and losers, cartels and monopolies, which will only work to the benefit of the big producers and the top end of town.

Such an arrangement would be feudal and one need look no further than Pakistan to see how it would operate and the extent to which equity would be lacking.

To cope with climate change centrally controlled infrastructure will need to be built. High energy costs will demand more efficient transport services, ports and roads.

Crisis, whether real or created, serves only to strengthen the hand of central government.

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About the Author

Bruce Haigh is a political commentator and retired diplomat who served in Pakistan and Afghanistan in 1972-73 and 1986-88, and in South Africa from 1976-1979

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