THE LATE Chief Justice Sir Owen Dixon is reput ed to have come out of an ABC symphony concert quipping to another judge: “”The concert was splendid but I don’t know what it has got to do with telegraphic, postal and other like services”
Those services are in the Constitution as a federal head of power and they are the words which enabled the Federal Government to set up a national broadcaster
These days one might well ask what the sexual relationships of Tasmanians have to do with “”external affairs”
The Leader of the Opposition, Alexander Downer, has floated the idea of holding a referendum to limit the Federal Parliament’s external-affairs power because, he argues, it has centralised power and abridged states’ rights
I don’t buy the argument The foreign-affairs power is very small beer indeed compared to the use of the federal economic powers
What has the foreign-affairs power done? It stopped a dam in Tasmania an action for which Tasmanians should be grateful because it was demonstrably not needed It enabled the Federal Government to control air traffic And it has enabled it to enact some enforceable counselling, fines and jail terms for various “”human rights” breaches
Labor has used the foreign-affairs power for some pet political projects just as conservative governments have used seemingly unrelated powers for their projects Menzies tried to use the defence power to abolish the Communist Party and Fraser used the corporations power to make some union black bans illegalel,4 drop,2,nimb IT IS possible Downer might have to resort to the foreign-affairs power to make unionism voluntary because there is nothing to stop a state law making it compulsory
In short, federal politicians of both persuasions are going to define pet objectives and then ask the lawyers to frame them in a such a way that they can be supported by one or other head of federal power
For example, if you want to ban uranium mining, you say: “”A corporation shall not mine uranium and an individual shall not sell uranium overseas” That has the effect of banning uranium mining using the corporations and foreign-trade power, even though the Federal Parliament has no power to prevent an individual mining uranium and selling it to another individual in the same state
Politicians are going to make laws about uranium or human rights by framing them in a constitutionally acceptable way so that lawyers and judges can say they are laws “”with respect to” corporations, foreign trade, lighthouses, telegraphic and other like services or any one or more of 40-odd federal powers listed in the Constitution
A Downer attempt to limit the foreign-affairs power is not going to change that and is not going to have much impact on what the Federal Parliament can do
A better way would be to enable the voters (on obtaining signatures of 2 per cent of the electorate) to veto by referendum any federal law they did not like, not just exercises of the foreign-affairs power they might object to
In the meantime, Downer should address the larger constitutional problem of the fiscal castration of the states At present, the Commonwealth collects all the income and company tax and the states have to come begging The Commonwealth gives it back with strings attached, and has set up a huge duplicate bureaucracy (especially in health and education) to ensure the strings stay attached
The states in the meantime have had to look for other sources of income They have hit on stamp duty and the milk cows of their electricity and water utilities These, however, are very inefficient taxes that promote extravagant misuse of resources and over-consumption
This constitutional aberration is having a far more profound effect on the lives of Australians than the foreign-affairs power The states are hypocritical to whinge about foreign affairs when it is in their power to fix the more significant power imbalance by imposing an income tax and reimposing the death duties they so foolishly gave away in the 1970s Then they could start controlling their own destinies.