Majorities everywhere. The Republicans in the US have the White House, the Senate and the House of Representatives. The Liberals in Australia have Kirribilli House (sorry, The Lodge), the House of Representatives and the Senate. And Labor has a majority in the single house of the Act Parliament.
In declaring victory after his majority, George W Bush mentioned the Constitution. But the Australian Constitution did not figure in John Howard’s declaration.
Democrats in America can take some solace that the US Constitution with its Bill of Rights will ameliorate the excesses of the majority. The Australian Constitution is less robust. It does not have the same guarantees of individual rights, nor the checks and balances between the several arms of government. It used to provide at least some restraints against excessive use of power by the Federal Government by enforcing a stricter view of federal powers, but it is now too easy to get around that.
We have seen the flexing of the majority muscle in the past fortnight in Australia. Selling Telstra and exempting small business from unfair dismissal laws are fair enough; they were mentioned in the election campaign and have been Liberal policy for a long time.
But no-one mentioned abortion or the Federal Government taking over the universities and public hospitals in the campaign. Wholesale changes to industrial relations were not flagged. And the fairly restrictive national defamation law hardly got a mention.
These four possibilities illustrate a point about one side of politics having a majority in both Houses of Federal Parliament. Until the early 1980s, the federal Constitution acted as a restraint against abuse of majority power.
Nowadays the Federal Government can do pretty much as it pleases, if it has the political will. The Constitution can be deftly (or bluntly) worked around. It comes down to money and to a lesser extent the development of corporations law.
Health, education, crime, traffic and intra-state industrial relations, for example, are not listed in the Constitution as matters for the Federal Parliament. The Founding Fathers assumed they would be looked after at the state level, and if the Feds butted in the states could take them to the High Court to have their laws struck out for going beyond the powers assigned by the Constitution.
But now, the Federal Government (almost interchangeable with the words “Federal Parliament”) has learnt it does not have to legislate directly to get its way. Most of the time it uses bribery and blackmail. Those states that conform to the Federal Government’s requirements on, for example, voluntary student unionism and individual staff contracts in universities will get extra money. Those that apply literacy and numeracy tests will get extra money.
Who needs a constitutional power over education when you have power over the raising of revenue and the passing of it to the states?
I am not arguing the merits of these measures, just pointing out that the Federal Government no longer needs a head of power in the Constitution to exercise power over pretty well whatever it likes.
This is because the Constitution allows the Commonwealth to give grants to any state on whatever terms it sees fit. Before 1970 these “special purpose” grants were usually restricted for special national projects. Nowadays they underpin the whole structure of state finances and the programs the states administer, so the Commonwealth can get its way across the board by the threat to remove money or a bribe to increase it.
Federal Labor demanded and got random breath-testing and 0.05 across the land by tying road grants to their imposition. Again, I am not arguing the merits of the measures, just pointing out how much more powerful the Commonwealth is, and therefore how much more powerful John Howard is.
Whatever the states cannot be bribed or blackmailed into, can be mopped up by the corporations power. The Commonwealth has power to make laws with respect to nearly all corporations. That power has gained wider interpretation in the past 20 years. So much is done by corporations these days – including dismissing employees – that the Commonwealth can legislate over all manner of things using that power.
Again, there may or may not be some merit in changing dismissal laws. I am just pointing out how the Commonwealth has got so much more power to do it – power that the Liberals in past would have warned against as dangerous centralism.
It may be that some individual employers (who are not incorporated) will still be subject to state unfair dismissal laws, but the Commonwealth has made incorporation so easy that few employers need be be caught. Besides the Commonwealth can bribe states into repealing non-corporate unfair dismissal laws by providing, say, “business-development” grants to those states which “promote business” by axing their unfair dismissal laws.
Freedom of speech can be impingned by making publishing corporations liable for defaming the dead or making “unreasonable” comment. And that is what Federal Attorney-General Phillip Ruddock’s latest defamation law would do. The Constitution does not have a head of power under which the Commonwealth can legislate for defamation across the board. No matter. The Commonwealth threatened to impose its own Act to deal with any action involving corporations, including, therefore, all media cases, unless the states buckled. They buckled. So watch out if you say anything nasty about a recently dead politician.
The US Constitution’s Bill of Rights would not allow it.
There is no such brake on the majority in Australia.
Until recently, a brake on the majority in Australia has been the general view of conservative parties at the federal level to leave the states alone (the Menzies-Fraser view). So it was only the expansive, centralist, socialist Labor Party whose actions at the Federal level needed watching for encroachment into state areas. Until now.
Howard has never in his heart been a states rightser – he just promoted “states rights” because he did not like Federal Labor flexing power for its ideological agenda. Now his ideological agenda is best advanced by imposing a centrist view, “states rights” go out the window, especially as all the states and territories are governed by Labor.
Education Minister Brendan Nelson’s statement about the folly of having different state legislation for universities could have come straight out of the mouth of a Minsiter in the Whitlam Government.
In many ways the Liberal Party under John Howard is not a conservative party. It is a radical party, with an agenda for change, especially in industrial relations.
In Opposition, the Liberal Party constantly whinged that Labor was ignoring constitutional intent by over-riding states rights, particularly by using the external-affairs power to implement a foreign treaty at a national level to further a social end: discrimination laws, labour rights such as unfair dismissal and so on.
In Government, the Liberals are at it themselves, though they will use the corporations power rather than the external-affairs power, in addition to general financial clout.
On abortion, for example, the Commonwealth can withdraw Medicare benefits to patients and cut funding to hospitals that perform them.
It is true the states and territories have often been inept, but in the past they have served as a brake to one or other side of politics. In 2004 that is no longer the case and the Constitution itself provides precious little protection for individuals against a new federal onslaught.
It is not the end of the world. The party rooms of the Coalition and public opinion itself can be a tempering influence. But do not expect the Constitution and the High Court to be significant barriers to the will of the Federal Government as it was when Labor had majorities in the 1940s and briefly in the 1970s.