IT WAS either 1971 or 1972. I was in a lift at (old) Parliament House, running messages. It was packed with journalists, including Alan Reid, then perhaps in his late 50s. I forget what the issue was, perhaps the Commonwealth’s grab for the seabed or something like it. Reid was in a pontificating mood. “”Barring natural disasters,” he said. “”All the best stories come out of the Constitution.”
This was pre-Whitlam, pre-1975, pre-Tasmanian Dams; pre-Darwin cyclone and, of course, pre-Mabo. Reid was no doubt thinking of the bank-nationalisation case, the uniform-tax case or petrol rationing, but his words have held up well.
Mabo is essentially a constitutional case. The finding of native title was one matter; of greater import was finding its constitutional underpinning that would make it enforceable: the requirement that the Federal Government can only take property on “”just terms” and the finding that the Racial Discrimination Act was a valid exercise of the foreign-affairs power, so the states could not extinguish native title because it would also inevitably breach that Act.
Incidentally, imagine if the 1988 referendum had been carried. It would have insisted that states, too, pay compensation on just terms for property taken from citizens. Some irony, that property-owning tories supported that question, but rejected it because they did not like the other human-rights baggage that came with it.
But that is a hypothetical. Of more import It is more important to put last week’s Council of Australian Governments (premiers’) conference into constitutional context.
Since the uniform-tax case in 1942, premiers’ conferences have been a bit of a Punch and Judy show. Everyone knows the plot and outcome, but they are fun just the same. The tax case ruled valid several Commonwealth laws that in effect took over state income-tax power. In return the Commonwealth gave money back to the states as grants. Essentially, the Commonwealth has the purse strings, pays the piper and calls the tune. Oliver-Twist-like, the states front up and put out the bowl. Calls for more are not treated seriously.
At the end of the conference there is always an “”agreement” about Commonwealth payments to the states. The Commonwealth prescribes, and the states agree.
So what was so different about last week’s COAG (premiers’) conference? Different piper. Different tune. We are no longer singing the Uniform Tax Symphony. We are listening to the Section 51 (xxvi) and (xxxi) Cacophony.
Section 51 (xxvi) enables the Commonwealth to make laws with respect to the people of any race, but (xxxi) provides that any acquisition of property, from any person or state, for this or any other Commonwealth purpose, has to be on “”just terms”.
This is a big problem for the Commonwealth. If it runs off and sets up a tribunal to declare native title, and perhaps convert it to freehold, or if it grants veto rights over mining or grazing, it could face claims for compensation under Section 51 (xxxi) by the states, miners, graziers and perhaps aggrieved Aboriginal groups who miss out in favour of other Aboriginal groups.
So instead of the Commonwealth beating the states around the head, the states could beat the Commonwealth around the head with Section 51 (xxxi). That is why there was no “”agreement” last week. Normally, you get submission by the states, which the eight governments quaintly call “”agreement”. Last week, there was no need for the states to submit.
Paul Keating, of course, a Treasurer for nine years, was so used to beating the states around the head at premiers’ conferences that he thought he could do the same thing last week. He was wrong.
Land management is one of the last heads of governmental power since the uniform-tax case which that the Commonwealth has not colonised either through twisting the states’ arms or bribing them. Health and education, for example, have long been so colonised. The Commonwealth has sniffed around the edges of land management with some environmental strictures like the better-cities program and woodchip exports, but, by and large, the states have been allowed to get on with it until now.
Through Mabo the Commonwealth was threatening yet another area that had usually be a state domain. In the past, a determined onslaught by the Commonwealth has usually resulted in submission by the states, but this time the “”just terms” requirement has been a potent shield for the states.
So Keating is right when he says Mabo needs a national approach; it is just a question of how you go about it. And in any event, Alan Reid is certainly right again.