November 18

The States and the High Court

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 in the nineties.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 use of the corporations power is almost without limits. The Court  had 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 Geffrey de Qincy Walker  said of the Engineers case that 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 recognized 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 17 November, 2006 that “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 PP McGuiness, writing in The Australian on 15 Novembers, 2006, warned that this decision could and probably would work both ways. A future government could regularize prices and incomes, re- regulate the labour market, and if socialism becomes fashionable again, effect the nationalization of any sectors 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.

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   that “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, 1999, page 150)  In handing down its decision on 14 November, 2006, the High Court majority said the fact that the people may have indicated their objection to a specific change is of “no assistance” to them. That is, the fact that the people may have refused to grant some power to the Commonwealth is to be completely ignored.

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.
 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”, that is 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.
·       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 Justices 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, 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.
As to procedure,  the  governments should agree in advance that the principles of the Corowa Plan 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  finalizes its draft, say in twelve  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 ( say 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 nineteenth 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 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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