The states’ whinge last week about federal “”abuse” of its treaty-making power showed a remarkable naivety about the exercise of Federal power in Australia and remarkable ignorance about the way the Constitution works _ remarkable in the sense that I am about to remark on it.
The states said that the Federal Government was upsetting the federal compact by launching into fields hitherto occupied by the states.
Those fields are environment, employment, and a bevy of civil rights matters such as race, sex and age discrimination and privacy.
It has meant that a Queensland developer was stopped by the Feds from ripping up mangroves; that Tasmania’s law against homosexual acts is probably ineffective and employers and employees everywhere are subject to unfair dismissal rules.
The states called for a treaties council of all Australian Governments and/or approval of treaties by both Houses of Federal Parliament. The theory goes that the Federal Government would then be prevented from signing any more treaties that infringed state power.
Ho, hum.
This is a akin to taking the spray-paint can away from the graffitist; the graffitist will merely get another spray-paint can and continue painting the big picture. Curbing the treaties power will not make much difference.
Most likely the new spray can would be the corporations power. “”A corporation shall not mangle mangroves; unfairly dismiss anyone; discriminate on the grounds of sex, race, religion or age.” And so on.
Bear in mind this: the corporations power has been hugely widened in a practical sense since about 1980. Every state and federal government has been maniacally privatising since then. All those state-run bodies had at least partial immunity from the federal exercise of the corporations power. Not any more.
What about the privacy law that gave protection to Tasmania’s homosexuals? It is a more difficult problem for the Feds, but not impossible. The Federal Government could use the immigration and Aboriginal affairs power, for example, to give protection to people born overseas and Aborigines, leaving the Tasmanian Government in the invidious position of leaving every non-Aborigine born in Australia exposed.
There are many artful ways of using the Constitution to increase federal power. The treaties power is but one of them. Abuse of the treaties power is a symptom, not a cause, of increasing federal power and increasing centralism.
Addressing the treaties power does not address the core issue of what sort of balance of power between the states and the Commonwealth. The change in the balance has a more fundamental causes.
One of the main reasons the Commonwealth has been able to attract more power over 95 years is because the mainly pro-states’ righters who drafted the Constitution messed it up (from their point of view). They thought that if they could put all the Commonwealth powers into defined little boxes and let the states have the rest, then the Commonwealth would be restricted. So they said the Commonwealth could have power to make law with respect to: lighthouses, weights and measures; external affairs; foreign trade; interstate industrial disputes; marriage and divorce and so on. And the states could have all the rest.
The trouble is that as the world gets more complex the defined powers reach into more fields of human activity, and therefore they become larger. Whereas the “”all the rest” has no defined position, no defined boundary to defend itself, and so it is forced to contract.
Another reason for the changing balance is not legislative at all, but bureaucratic.
As C. Northcote Parkinson points out, bureaucrats like promotion and underlings. To get that they need more and more programs to run. Running programs often means just spending money; no specific power is needed over the things money is spent on, and certainly the recipients of the money will not challenge the constitutional foundations of their bounty.
Overcoming the inefficiencies of duplication, on one hand, and the evils of centralism, on the other, will need more than a reworking of the external affairs power.