As Australia's pandemic problems start to fracture our political system, it is important to remember how our Federal system of government is at the heart of our current disputes. If the system is broke why are we not fixing it?
Never one to waste an opportunity to remind people of the importance of the Constitution in our daily lives, the word FEDERATION should be in everyone’s minds and on everyone’s lips, even during these vexing and virulent times.
Why? Because our Federal system of government is being sorely tested at the moment because of accumulated strains and contradictions within our Federal system of government.
Many Australians would be forgiven for assuming that responsibility for laws and policies relating to, dare I say it, feverishly topical issues of health and education would be that of the Federal government. They are not. Under the constitutional arrangements for the division of legislative powers within our Federation that were made in the 1890s and proclaimed on 1/1/1901, health and education were classified as residual powers. As such, responsibility for these powers, along with the other important areas such as transport and criminal law, was given to the six states at the time of our Federation.
That is why, for better of for worse, the nation has six different sets of criminal laws, six different educational and health systems, and six different sets of road laws. Hence, different States have different speed limits on different roads.
Until the introduction of the K-10 National Curriculum for schools, each of the States had separate curriculums operating at these year levels. This led to maddening results, where families relocating interstate would often seeing their children study a topic of Mathematics in Year 9 in their new State having already studied it in Year 8 in their former State. Still today, every State has its own form of Year 12 assessment and offerings of subjects.
The complexities of separate State responsibility for health led to the Federal government’s introduction of the national database for health records- Myhealth.net.au- to assist doctors treating patients that have temporarily or permanently moved interstate. Otherwise, we have six separate State health systems, each with their own spectacular bureaucracy. Directors-General of Health in each State earn more than the Prime Minister!
In the world of criminal law, Federation is the reason why it is not possible to have one consistent national law on domestic violence. It is also the reason why, following the Port Arthur massacre in 1996, John Howard had to seek agreement of the then State and Territory leaders to pass complementary legislation controlling gun ownership, because the Federal government had no constitutional authority to do so.
Since 1901, there has been next to no change of the constitutional allocation of powers over these important public areas, with the last being an expansion of the Federal government's powers to provide welfare services in 1946! The Federal government was also granted the power to make laws for indigenous Australians in 1967.
However, things are not entirely what they seem. A series of significant High Court judgements since the Second World War has led to the Federal government dramatically increasing its financial power. This has resulted in State governments having to rely on Federal government funding to discharge their constitutional responsibilities in areas such as health, transport and education.
It is a condition known in textbooks as Vertical Fiscal Imbalance (VFI). In the world of real politics, the parlous financial position of the States has enabled Federal governments to impose conditions on the allocation of Federal funds for schools, hospitals and roads. Some call this extortion.
Remember the Prime Minister’s friendly reminder to the Catholic Archbishop of Sydney in March that the Federal government controlled a lion’s share of funding to State Catholic schools as Mr. Morrison ‘suggested’ that they remain open. Want a particular road built? Contact the Federal government!
The current National Cabinet (NC) that was established to implement a unified Federal approach to managing the pandemic. Its membership is the Prime Minister, the State and Territory leaders and National and State Health Officers. Yet, despite the urgency of the times, the NC has reminded us of the fundamental importance of Federation. Why couldn't the NC give clear direction on the closure of schools? There should have been a co-ordinated national approach, but, ultimately it was a decision for each State.
Why has there not been a consistent national approach on the closure of public spaces ,the sanctioning of those that break lockdown laws and the banning of social protests and marches? The answer is Federation. Each State has its own responsibility to decide what its criminal laws will be.
The result is a cauldron of political and financial uncertainty. The federal model of 1901 split the atom of lawmaking powers between Federal and State governments, but no-one could have envisaged the fused and flawed Federation that has emerged as a result of the Federal government’s radically increased financial powers.
The plight of our aged-care system also reflects the flawed Federal model. Health care is nominally a State power, but Federal governments have assumed responsibility for the funding of aged care facilities. Lo and behold when failures emerge in the system the two levels of government blame each other, but neither fix the problem!
Scott Morrison can close our international borders, but has no authority, other than pleading in the national interest, to control State governments as they open and close their borders. Their is an argument that the Federal government has the power to challenge State border closures on a number of grounds, but which Prime Minister is going to instigate a divisive High Court challenge and unite all the States against Canberra at a time when national unity is sought?
There is a final twist in our Federal tale. The Constitution provides that many lawmaking powers can be exercised by both State and Federal governments. These are called concurrent powers. If laws are made by both governments that are contradictory, the Constitution provides that the Federal law will prevail to the extent of the inconsistency.
Quarantine ( a word that comes from the Italian for forty-quaranta-and historically referred to the number of days a ship had to stay away from port if it had ill passengers , like a medieval Ruby Princess!) powers are an example of this- see S.51(ix) of the Constitution. During the pandemic the Federal government has let the States organise their own quarantine policies, with offers of Federal assistance. However, the Federal government could have imposed a national approach to quarantine under its total direction. This would have caused a political rupture within our Federal system as the States would have cried foul about an interfering and power-hungry Canberra. Now the Federal Treasurer exercises his right to condemn Victoria's apparent failure to manage its quarantine programme.
It has often been said that the constitutional division of powers between our State and Federal governments was drafted in a “horse and buggy era” and that the time to reconsider the appropriateness of this division of powers in the “space age” is long overdue. However, the only way to grant the Federal government unambiguous control over key national matters including education, the environment and health is for a referendum to be passed, enabling such power to be explicitly given to the Federal government through an amendment to the words of the Constitution.
What is a referendum? Section 128, the final section of the Constitution, provides that the only method of formally changing the words of the Constitution is for a referendum proposing such change to be put to the people. A referendum must be passed by a majority of voters and a majority of States. Why? Because of Federation. The less populated colonies at the time of Federation would not have agreed to join the Federal compact if they did not have the power to veto constitutional changes that they feared may only advantage NSW and Victoria. It is for that same reason that the States were offered the security blanket of each having the same number of Senators, irrespective of population. The need to create a Federal balance in our Federation sees Tasmania, with a population of just over 500,000 having the same number of Senators as New South Wales with a population of over 7,500,000.
This is why Sisyphus had a more straightforward task. Only 8 out of 44 referendums have been successful in this country since 1901. The last successful referendums were passed in 1977. The last referendum that was put to the people was in 1999 and proposed that Australia become a Republic and that a new preamble be written into the Constitution. Both proposals were roundly defeated, with not one State supporting either proposal. We have had nearly two generations of failure to change the Constitution.
This is why the much promised referendum on recognising indigenous occupation in the Constitution is constantly deferred. Reaching agreement on the wording of the proposed reform has become contentious. This is because the history of referendum campaigns tells us that if there is even a whiff of dissent about the effect of the proposed change, the public, being compelled to vote, will err on the side of rejecting change.
Federation formed us. Without Federation none of us would be Australians and carry an Australian passport. The ANZACS could not have been called that if not for Federation. Colonial soldiers would have fought on the Gallipoli peninsula, rather than Australians along with New Zealanders. Yet we now have a flawed Federal model. Contemporary conflicts between resentful, financially dependent States and a powerful domineering Federal government are endless.
Sadly, even at a time of great national concern, the fractures of Federation continue to bedevil. The public have a justified perception of a failing and confused system. If people “get the governments they deserve”, it also seems true that we have been increasingly shackled by a Federation that fails to operate as was intended. As great as these failures are, the greater failure is our unwillingness to redesign the Federal system. Sadly, it seems we tolerate a flawed Federation because of the perceived impossibility of change through the referendum process.
When the virus is controlled, the public need to recognise that the failings of our Federation are genuine ‘F-bombs’ that continue to explode around us. Instead of saying “If it ain’t broke, don’t fix it”, the time has come to ask of Federation, “ If it is broken, why aren’t we fixing it?”