February 23rd 2019

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Articles from this issue:

COVER STORY Something rotten led to fish-kill: perhaps fishy environmentalism

EDITORIAL Resistance grows to Beijing's soft-power push

CANBERRA OBSERVED Climate change: deadly ... to political leaders

TECHNOLOGY Electric cars: UK taxpayers subsidise rich greenies


CYBER SECURITY Chinese smartphone threat extends way beyond Huawei

SOCIETY Such grandeur of spirit

POLITICS John Hewson should have as sturdy a Constitution

FINANCE Hayne royal commission sets agenda for bank reform

FAMILY RELATIONS Dad: a girl's first and most influential love

COMMENTARY Words gone feral: rights and equality

MEDICINE AND CULTURE Book captures tragedy of falling foul of a fanatic

SOCIETY AND CULTURE A dog's life: reflections of a grey nomad


MUSIC Serialism a killer: Ideas tend to get in the way

CINEMA Cold Pursuit: Revenge served up manic

BOOK REVIEW Why the West and nowhere else

BOOK REVIEW The escalation of horror and atrocity


FAMILY AND SOCIETY The end of Liberalism

SPECIAL EDITORIAL Has Cardinal George Pell been wrongly convicted?

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John Hewson should have as sturdy a Constitution

by Colin Teese

News Weekly, February 23, 2019

The end of the year is often cause for commentators to criticise the way government is functioning. This year John Hewson, a former leader of the Liberal Party, joined the chorus.

Our Government, he told us, was not working well. His solution: rewrite the constitution to diminish the powers of the states in the name of “efficiency”.

Dissatisfaction with the way a government or political system is operating is not confined to Australia. It is hardly surprising that these criticisms arise in times of political and social tension. The United States, Britain and, indeed, the whole of Europe are passing through periods of great social upheaval – great enough for large numbers of citizens to question the validity of their systems of government.

One would expect that, in working democracies, people would be content to express dissatisfactions at the ballot box. The fact that they are not prepared to rely on that process could suggest a sense of disempowerment. Ordinary people are coming to the view that, as a consequence of the influence of power elites on elected representatives, truly democratic government is being undermined. The political class is listening to the wrong voices.

The alternative, so the thinking goes, is for the disenchanted to make known their views by public protest, sometimes violently.

These signals of concern deserve to be taken seriously. Country by country they are worthy of analysis in their own right, rather than being dismissed as “populism” or other forms of extremism.

But the purpose of this article is confined to the question of the state of political life in Australia – it is also the narrower purpose John Hewson has set himself.

Dr Hewson is a well-regarded economist and it is not entirely clear to what extent his analysis proceeds from a political or an economic premise when he talks about “efficiency”. Economic efficiency is one thing, political efficiency another.

The distinction is important. Constitutions, written or otherwise, are creations of the time and place of their creation. Ours was created in an exclusively political context and its evaluation on any other basis is pointless.

Its provisions allow for six former British colonies to become states of a new Commonwealth of Australia enjoying Dominion status within the British Empire. The main purpose of the incoming states was to surrender no more than the minimum amount of power necessary for the new Commonwealth to function as a central government. The idea was to concede, in effect, little more than the right to exercise power over defence, external affairs, and trade and commerce.

All of this, however, in still in the context of being no more than a Dominion within the British Empire. This alone sets Australia apart from the United States of America. When it cast off its colonial shackles, the U.S. immediately became a nation state in its own right. A republic, in fact.

In our case, six former colonies within the British Empire agreed to federate on the basis of a written Constitution specifying, and thereby limiting, the powers of the Commonwealth. The result was not the creation of a completely independent nation state, but rather a Dominion, with a generous amount of self-government, within the British Empire.

A governor-general, appointed by the British monarch, was head of state as a kind of “night-watchman”, with important powers to become involved, as necessary, in the operation of the new Australian Parliament.

Full independent nationhood did not arrive until 1942 with the implementation of the Statute of Westminster. Actually that statute was passed into law in 1930 but did not come into effect until 1942. Specifically, the statute provided that the British Parliament was no longer able to prescribe laws that would have effect in Australia.

Notwithstanding, our Constitution was a painstakingly negotiated document arising from protracted discussions among the representatives of the six colonies with serious input from London.

The Colonial Office was certainly pushing the idea of federation. The six colonies were not unsympathetic to the idea, providing that the colonies’ long-term security could be preserved. Their concerns were understandable. Spread across a vast continent, each varied in population size, potential economic strength, climate and other diverse ways.

Two considerations dominated their collective thinking. They wanted a Commonwealth with limited powers: in fact, the end result, rather unusually for a federation, actually specified the powers which could be exercised by the Commonwealth. All unspecified powers resided with the new state governments.

Also heavily in favour of maintaining state government powers were the means provided for amending the Constitution. A referendum required not merely a simple majority of the people of the Commonwealth but, in addition, a majority of the six states. Effectively, a referendum could not succeed unless four of the six states agreed. As a result the power and influence of the most populous states was heavily circumscribed.

States’ rights at stake

It should also be recognised that the Parliament was set up in such a way as to protect the rights of the states. The Senate was to be the States’ House – with the same number of senators being chosen from each state, regardless of size or population.

Of course, as we all know, it has not worked out that way in practice. Senators are elected on party-political tickets and behave accordingly. State interests are given only secondary consideration, however much practising senators may protest otherwise.

Notwithstanding, some of the more outspoken critics of state interests, such as former Prime Minister Paul Keating, have publicly called for the abolition of the Senate.

Whatever may have been the justification for the limitations the Constitution placed upon the powers of the a Commonwealth at the time of Federation 118 years ago, there are now those, Dr Hewson among them, who believe those limitations are no longer necessary or desirable.

But the real question, for those of that opinion, is, how much has the text of the Constitution, or the mechanisms for amending it, acted as a genuinely constraining influence on today’s Commonwealth. It is true that of the 44 referendums held only eight have succeeded.

What may we conclude from that? Certainly, the people have not displayed much appetite for changing the Constitution. We can be less certain about why this is so.

It has been said that a referendum can succeed only if it has the support of both sides of politics. That, however, is only part of the story. Closer scrutiny also suggests it is difficult to muster support for a referendum where the intention is further to empower the Commonwealth.

This very much suggests that there is a deeply held preference for defending “states’ rights” against Commonwealth incursion. And, surely, in a democracy, that should count for something.

Then there is the politics. Parties on the conservative side have routinely presented themselves as defenders of states’ rights, by comparison with their political opponents. Practice, however, does not support their claim.

Robert Menzies, who proclaimed himself a dedicated states’ righter behaved otherwise as prime minister. All of his successors have followed much the same path.

The obvious argument in favour of more power to the Commonwealth is that many current issues were not in play in 1901, such as, for example, aviation.

Against that it can be reasonably said that, whenever a transfer of power to the Commonwealth was incontestably in the national interest, the states have been prepared to cooperate.

Social services are a good example. This power under Section 51(xxiii) was transferred to the Commonwealth in 1946. (Of course, it should be acknowledged that this was in circumstances that the states had lost the power to collect income tax as a result of changes made in a defence context during World War II.

Also, it is generally not well understood that the most important of the Commonwealth powers are broadly stated. For example, “trade and commerce” and “foreign affairs” are Commonwealth powers. Both of these, imaginatively exercised, have allowed the Commonwealth to intrude into otherwise “state” areas of operation. Aviation is a case in point. Almost any aspect of aviation responsibility surely can be encompassed within the “commerce” power of the Commonwealth.

Even without this advantage of the “commerce” power, the Commonwealth has been able to push deeply into state responsibilities – education and health are notable examples.

On balance it is difficult to make a convincing case that the Constitution has seriously limited the powers of the Commonwealth to operate effectively. On balance it could reasonably be claimed that the Constitution after 118 years is working pretty well in keeping a reasonable balance between state and Commonwealth powers.

There is, however, one important undesirable hangover from colonial days. In federating, Australia has ended up with three tiers of government: local, state and commonwealth. The question is whether, in this day and age, we need three levels of government. It is a debate worth having but it has nothing to do with our Constitution. It was brought into the system by the federating colonies, which are probably in no position to change it.

 Centralists such as Dr Hewson would presumably disagree.

But it is worth noting that much of the world is going in the opposite direction. In Europe and Britain, for example, the push is for greater decentralisation. All over Europe, regions within states are pushing for greater independence from central administrations.

 The European Union itself is being questioned.

Even here in Australia there is not much evidence of widespread support for more centralisation of power in the hands of the Commonwealth.

Dr Hewson is almost certainly right when he suggests that our central government is not functioning well, but it is hardly from want of sufficient power in the hands of the central government.

Colin Teese is a former deputy secretary of the Department of Trade.

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