Prime Minister John Howard gets himself into all sorts of difficulties when he mentions “”states’ rights” in the same breath as any moral issue. Matters like fertility treatment, euthanasia, gambling, pornography, drugs, discrimination and so on do not sit easily on the boundaries of state and federal heads of power.
Howard is not alone in this. Other politicians fall into the same trap: describing something as a matter of states’ rights or federal obligation to justify their stand, but Howard seems to have been inconsistent more often over a shorter period than most.
Most recently, he argued that the states have a right to prevent lesbians and single mothers from access to IVF fertility programs. Victoria had passed a law banning them from access to its state-funded program. The effectiveness of that law was successfully challenged because it was inconsistent with the federal Sex Discrimination Act. Under the Constitution, if a valid Commonwealth law conflicts a state law, the state law is inoperative while the Commonwealth law remains on the books. Howard said he would like to change the Sex Discrimination Act so that the Victorian law would become operative.
Note, the Victorian law is not rendered invalid by its inconsistency with the Commonwealth law. Rather, it hovers in ineffective abeyance ready to automatically spring back into effective life if the Commonwealth law is repealed or changed. No further action is required by the Victorian Parliament.
A short time ago Howard argued that the federal Parliament had a duty to override state and territory proposals to allow euthanasia and the licensing of internet gambling. In these cases, states’ rights were not considered, unlike now when he wants the state law to prevail.
He also thought that the Commonwealth Parliament had a duty to use foreign treaties against drug trafficking to legislate to prevent state and territory proposals to set up safe heroin injecting rooms. Again, inconsistently, Howard argued that the Commonwealth had no obligation to legislate to uphold treaties it had signed that were breached by Northern Territory and Western Australian mandatory-sentencing laws.
He also was willing to push federal constitutional power to try (rather futilely) to ban internet pornography when his party is in favour of not widening federal power.
In short, Howard is all over the place, constitutionally. He is consistent in two ways, though. First, he advocates approaches that he thinks are consistent with majority opinion. Secondly, his message is consistently one of Christian conservatism: he is against gay and lesbian marriages and child-rearing; gambling and pornography and pro-punishment etc. However, it is difficult to put that as a public position. To be consistent he could say: “”I am a Christian conservative and I will use or not use whatever Commonwealth power I can lay my hands on to pursue those values.” That is very difficult to sell electorally. Lesbians and atheists vote, too, and many other small-l liberals object to the injection of religion into politics. Even if they are in a minority, their votes might be affected. So, Howard is left juggling inconsistent constitutional positions in order to justify a consistent religious position.
The theological-constitutional jumble became apparent on Tuesday when he said, “”This issue involves overwhelmingly, in the opinion of the Government, the right of children in our society to have the reasonable expectation, other things being equal, of the affection and care of both a mother and a father. And in those circumstances we believe state have the right to legislate to that effect.”
He is saying that the Commonwealth Government believes babies should have two parents therefore the states have a right to legislate for it.
It is a non sequitur. Illogical. Legal nonsense.
Later he said, “”I mean, these are matters that have always been within the province of the states.”
For a start, IVF is fairly new. And even if Howard is talking about the rights of children the Commonwealth has a major role with respect to children under its divorce power.
The “”always” and “”traditional” are arguments often put when people waive a states’ rights flag to suit some transitory political or social agenda. They say it has traditionally or always been a matter for the states. But the argument runs counter to the history, theory and practice of Australian constitutional law.
When the Constitution was framed, the Founding Fathers listed the powers of the Commonwealth and left everything else unstated to the states. Commonwealth powers are mostly contained in Section 51. They include the power to make laws with respect to currency, weights and measures, lighthouses, defence, external affairs, post, telegraph and like services, corporations and so on. Perhaps they thought that by listing the Commonwealth’s powers they thought they would draw a boundary around Commonwealth powers giving the states the more powerful legislative ambit. They were wrong.
In interpreting the Commonwealth’s power the High Court asks the question, “”Is this law a law with respect to this head of power?” If yes, the law is valid. This approach has enabled the Commonwealth to legislate about an ever widening range of human affairs as it finds ways of drawing ever more categories of human affairs under the umbrella of the powers listed in Section 51.
Regulating aircraft is a law with respect to external affairs because the Commonwealth signed a treaty on it. The employing of lesbians and homosexuals is a law with respect to corporations (which employ them) and again external affairs because there is treaty. Censoring the internet is a law with respect to telegraphs and other like services. Indeed, think of anything you want to regulate and the Commonwealth can frame a law to get its way or nearly all its way using one or other of its powers. It is no longer a question of constitutional law, but merely a question of political will and good legislative drafting. To talk of states’ rights is twaddle. The states get what the Commonwealth chooses to leave them. No more.
And if legislative action does not work completely, the Commonwealth can use its financial powers. It can fund virtually whatever its likes. Or it can withhold funding. For example, it said large dollops of money would go to states for road funding provided they enacted various alcohol and speed limits. All states complied with the Commonwealth will despite traffic “”always” and “”traditionally” being a state matter.
Federal politicians should be more honest and leave the constitutional arguments of “”states’ rights” and “”federal obligations” aside. They should just say, “”We think this is a good/bad thing and we will use whatever power we can muster to ensure it does/does not happen.”
That puts the argument back where it should be, with questions like: how wide should the prohibition against discrimination be cast? Lesbians pay taxes, too, so shouldn’t they get access to all publicly funded medical services? Why publicly subsidise fertility programs anyway when there are so many other medical needs? And so on.
The interesting question for Howard is a “”what if?” What if his push politics worked and Labor became so scared of being branded the party of lesbians and single mums that it supported Howard’s changes to the Sex Discrimination Act so that the Victorian law prohibiting single and lesbian IVF funding was revived, but then the new Victorian Premier, Steve Bracks, reversed the Kennett-era prohibition so that they could be allowed in? Would Howard then use the Commonwealth’s huge funding powers (with no Senate approval needed) to coerce Victorian state institutions to deny lesbians and single women IVF treatment, irrespective of states’ rights?
We know at least this much: any accusation that he was being inconsistent on the states’ rights question would not figure highly in his reckoning.