I think the answer is yes. Certainly, there are local concerns that a national government wouldn’t be in a position to deal with adequately. But the same could be said of state governments. How effective is a government based in Perth at understanding the issues of the far north west? Furthermore the state boundaries are so arbitrary and anachronistic. They make absolutely no sense. They’re based on a model of major city plus hinterland. Not exactly a recipe for taking into account the local concerns of rural and regional areas. A model based on enlarged regional governments and one national government make much more sense.

Honestly though, what are the odds of a states-led discussion on State-Commonwealth allocations of the nature you’ve proposed?

I for one would support at least the process. Perhaps you should lean on your ALP history and call the Chief Minister’s office, Ken?

Exactly. That’s one of the points I’m making in these two posts. Callinan and Kirby’s judgments in Work Choices demonstrate that you can’t cogently mount an argument for reading heads of power in an interconnected, federal way without first demolishing and rejecting Engineers. There’s no sign of that occurring, although Callinan flirts with the idea in his Work Choices judgment. It seems fairly unlikely that a judicial or even academic groundswell against Engineers will ever develop, though.

My other point was essentially that the States aren’t as helpless as most commentators assume. They COULD mount a counter-attack if they chose, especially while all of them are Labor-controlled. A Convention as Rann suggests might not be a bad idea, but it could actually be done by State governments themselves reaching a common position and then putting a proposal to the Federal government involving referral of powers in return for the Commonwealth vacating fields agreed as wholly State responsibilities. The aim would be to re-allocate responsibilities in a rational manner so that functions that require high levels of national co-ordination would be Commonwealth and those more naturally local would remain State responsibilities. The States should also reclaim their taxing functions as part of this federal radical renovation. There would be no reason why State laws could not vest tax their actual tax collection functions in the federal ATO, just as the States currently vest corporate regulation functions in ASIC. Thus there wouldn’t need to be any effective difference from the current situation – to all intents and purposes people would still pay the same amount of tax to the same agency, but constitutional control would have reverted to the originally intended situation of federal division. As I say, all this could be achieved by the States themselves treating with the Commonwealth using the constitutional cards they possess and taking a strong joint position. It doesn’t require either a Constitutional Convention or any constitutional amendment at all; merely the requisite will.

The reason that both the Foreign Affairs and Corporations powers are so broad and powerful is because of the doctrine which grew out of Engineers: that each power should be read as widely as possible in isolation from the others. Whatever is left after this process is still within the orbit of the States.

When you take this line, then the High Court’s decisions in the Franklin Dam case and this latest round are perfectly valid. They might do horrible violence to the intended functioning of the Constitution, but it’s legal.

The Franklin Dam decision may well have been a good one on its intrinsic merits, but it had nothing at all to do with the exercise of foreign affairs.

At least this one has a logical connect with corporations law.

Unfortunately previous decisions had the effect of opening pandora’s box and you just can’t put the lid back on.

It’s as though the Court decided that holding goverment required the confidence of the Senate, not the House, and Steve Fielding then promised not to bring down the government. Such a promise is beside the point – there has been a long term change in power relationships.

1. It will often not be politically advantageous for Federal governments to assume ongoing “ownership” of entire areas of policymaking, as distinct from selective, politically popular interventions such as blocking the Franklin Dam.

2. There is also the practical consideration that if the Feds were to assume responsibilities currently exercised by the States in relation to schools, hospitals, natural resources, etc., they would need to create and finance an elaborate machinery of government of similar scale and complexity to the existing State bureaucracies currently dealing with these issues.

While I generally agree with Ken’s fairly moderate comments on Howard’s approach, the fact is he hasn’t been “in power” for over a decade. As PM he had control of the Reps and was able to set a legislative agenda but only to the extent that it didn’t run up against firm opposition from the ALP. He only got his (amended) GST through by using patient negotiation with Meg Lees even after winning an election in which GST was the major issue. Reith managed some IR reforms by negotiation with the left-wing Kernot. These hardly constitute “power” to carry out his desired agenda. Even his so-called control of the Senate since the last election is severly circumscribed by independent-minded senators of whom Joyce is but one.

Nevertheless Ken is right – John Howard is a very patient man and IR reform has been close to the top of his list of reform for many years. He’s not likely to go out on an anti-State binge.

Did you actually read what Kirby and Callinan wrote? They certainly seem to believe this is the end of federalism. Kirby in particular is scathing.

An excellent post in general, and of course this demonstrates the pitfalls of drafting constitutions. The shorter they are, the harder it is to be categorical. The longer they are, the easier it is to find phrases which provide comfort to some particular interpretation.

I think that the most damning thing about post-Engineers decisions is the makeup of the court before Engineers: the Justices were to a man all drafters of the document. It held no puzzles to them, and intentionalism was the quite natural method of interpretation for judges who could simply cast their mind back to what they were thinking at the time.

While I agree that the States will reserve resumptions of latent taxing powers for some dramatic circumstances, I also think that this is not the whole extent of the problem. It is not as though anyone other than Augustus Gough II is going to leap into dozens of new legislative areas. What will happen is a pitter-patter of erosion: a program here, a new department there, and before you know it the States are even more completely hollowed out.

Which is, incidentally, what’s been happening for the past 80 years.

I’m not arguing the Work Choices law is substantively just. In fact I have very significant reservations about it. That isn’t the point of these posts. I’m simply arguing that this decision’s effect on federalism is being greatly exaggerated.

As for Howard saying it wont use something as a mandate, he said the same thing about the Senate which turned out to be a lie.

I see you have fallen for the Catallaxist and Larvatusprodean trap of categorising things in left and right.

The difference with University takeover, it appears to have been a good decision.

Recent VSU legislation withstanding.

This may be the correct legal precedent finding on federalism and the corporations power found by the highest judiciary body but that does not remove the fact parts of the WorkChoices laws are unjust quashing what faith I had in the Judicial system. Any other court and it wouldn’t have mattered.

Neverthless, it has troubling aspects. The implication is that the Labor controlled state governments could bring the whole charade to an end, if they chose to, but choose not to.

State Labor, particularly in NSW, has been shifting ever rightward, and not in the Nick Greiner style efficient sense. They’re going for the lazy corrupt and stupid style ala Bush. People don’t like this very much. The NSW opposition is trying to outflank them on the right, which is politically untenable, and which means that there’s no viable opposition.

It’s convenient for the state Labor governments to let Howard do what he wants, because it makes them the “reasonable” alternative to him.