The public might well think that the High Court has abolished the states; that the constitutional world has be turned upside down and that the Federal Government can do whatever it likes.
That was the gist of nearly all the commentary on the High Court’s decision this week on the Government’s industrial relations law.
Settle down, folks. Settle down.
Most of the logic in the judgment is 81 years old. Most of the implications are at least 23 years old.
The legal and constitutional map of Australia was hardly changed a jot through the decision.
The notions put by the minority of Justices Ian Callinan and Michael Kirby that the Constitution provides for states’ rights and there is some rubicon which cannot be crossed by the Commonwealth into areas which had previously been occupied by the states was put to rest in the Engineers Case in 1925.
Hitherto, Kirby has been a centralist and a believer in federal intervention – provided, of course, it was for the causes he thought worth supporting. But once centralism was on a cause that looked like free-market capitalism and anti-worker, Kirby abandoned centralism. As usual his delivery was dressed up with dozens precedents and scores footnotes, but knocking out Howard’s IR laws was the conclusion upon which all of the precedents and premises were based.
Callinan, supposedly and traditionalist and a conservative, showed himself as a states’ rights troglodyte. Instead of following more than 80 years of legal precedent, he dragged out of the dustbin of history the discredited argument about reserve powers of the states. He showed himself to be an ideologue, not a conservative.
The majority judgment is unusual in only one respect: five judges produced a joint judgment in a constitutional case. The important points, though, are that the Commonwealth power has not been widened; that all of the predictions about the demise of the states have been made before; and that the industrial-relations landscape has not changed very much.
Bit boring, but the reality.
Industrial relations has been substantially federal anyway, and union power has been decreasing.
The High Court held in 1983 that the Commonwealth could legislate to demand that a corporation – in this case a corporation wholly owned by the Tasmanian Government – must bend to the will of the Commonwealth not to build a dam.
The court has long held that the Commonwealth has power to regulate the way corporations operate in the economy, as it does with the Trade Practices Act. Employment is an obvious extension of that.
In the past 10 years this column must have said a dozen times that the Commonwealth has the constitutional power to legislate that a corporation shall or shall not: employ people with red hair, discriminate against women, destroy heritage land or whatever.
Nothing has changed.
Callinan was spouting hyperbole when he said that the state parliaments might be reduced to mere debating chambers.
He displayed a complete misunderstanding (or obdurate denial) of Australia’s constitutional history.
The Founding Fathers sought to limit central power by limiting the powers of the Federal Parliament to a specific list. They are found in Section 51 of the Constitution: the power to make laws with respect to: currency, lighthouses, foreign affairs, financial and trading corporations, the settlement of industrial disputes that transcend state boundaries and so on. That states would, by implication, have all the rest.
On its face, the Constitution suggests that the Commonwealth’s power is limited and the states have the unlimited, unstated remainder.
But in fact the Constitution nowhere lays down that the states have specific power over anything anywhere (other than waterways). It only gives power to the Commonwealth.
Since 1925, the High Court has said that you look down the list of stated powers of the Commonwealth in Section 51 and ask the simple question: is this law passed by the Commonwealth Parliament within that list of powers.
How easy has it been for the Commonwealth to craft laws to make sure they are within that list and to achieve policy aims in an ever-more-complex world in which corporations and foreign relations play and ever greater role.
So the Commonwealth has for 100 years been expanding the application of its limited list. And as it expands it, the states have to give way. So the states which as colonies in the 1890s resisted the idea of having their powers limited to a list, now find themselves with no guaranteed powers (with some minor exceptions) and no rubicon over which the Commonwealth cannot tread .
Often, the Commonwealth merely had to bribe the states into complying with its will – as it has done with random breath-testing, literacy tests and immunisation. But occasionally the states refuse to be bribed. Labor states with their union connections will not be bribed into reducing union power. The hydro-obsessed Tasmanian Government was determined to build a dam. So legislation becomes necessary.
In 1983 all the dire predictions of the end of the states were made. But the states will not be reduced to debating societies. They will continue to have the power to legislate and innovate. They can pass laws on euthanasia, inheritance, criminal law, civil rights – indeed on anything at all (bar customs and excise duties) provided the Commonwealth has not entered the fray with a valid law.
It is a pity that the states cannot be abolished, laced as they are with corruption, scandal, and incompetence. So many policy areas require a national approach these days, not least IR. So it is not surprising we see national governments using their list of constitutional powers more widely.
We certainly do not need a constitutional convention. The last efforts dissolved in political acrimony with no result. Is does not matter much that the Commonwealth continues to expand power at the expense of the states. The real issue is whether it expands power at the expense of individuals. That’s the area in which constitutional change is needed.