My Re-imagining Australian federalism post a couple of days ago resulted in an interesting discussion with Mike Pepperday. Mike argued that my suggestion for tweaking federal division of powers by having the States negotiate for a more adequate assured share of Commonwealth-generated revenue by offering to refer to the Commonwealth under Constitution s 51(xxxvii) some aspects of particular State powers (e.g. control of the waters of the Murray-Darling; policy and prudential but not operational oversight of health and education) was objectionable. I think it’s a sensible refinement of the division negotiated at the end of the nineteenth century. It embodies a sort of corporate governance approach to public governance. That is, the federal government acts as the Board of Directors (policy and prudential oversight); the State government exercises senior operational executive control; and local government bodies and specialist local boards make and implement decisions at the local level.
However, Mike Pepperday’s objection does not relate to whether governance arrangements revised in that way would work better, but to what he sees as a fundamental democratic principle that the suggestion offends:
I do not think we should reason that because Australians won’t pass referendums, their will should be by-passed by using those sections. The two major parties have become tight, closed, little power corporations. It is undemocratic for them to be arranging constitutional power transfers through elite bargaining.
But is this in fact a fundamental democratic principle? And even if it is, does State referral of powers offend it? Surely this would only be so if there was some reasonably universal principle that significant changes in public governance arrangements should only be made by popular vote, or that this was the evolved Australian political tradition/culture, or that it was what the Founders who wrote our Constitution actually intended.
On the first point, it is very common for western democratic constitutional systems to provide for constitutional amendment by ordinary legislation enacted by Parliament (rather than by popular vote). Britain and New Zealand are examples of Westminster systems which employ that method. Indeed all the Australian States can and do amend their own constitutions by that method (Queensland adopted a brand new constitution as recently as 2001). In federations, it is common for the constitution to provide for amendment by majority vote of the State or provincial parliaments (rather than by popular vote). That is the case with Canada and the US. The referral provision in Constitution s 51(xxxvii) effectively provides just such a mechanism. It provides for the Commonwealth to have law-making power over “matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law“.
On the second point, use of the referral power is very much part of the evolved Australian political tradition/culture. Recent examples of referral include powers to allow the Commonwealth to enact uniform national corporations law and family law regimes and to supplement anti-terrorism laws in the wake of 9/11.
The third point is in many ways the most interesting. Did the Founders who drafted the Constitution intend that State referral of powers be used in the way I’m suggesting? I used the Australian Parliament’s excellent ParlInfo advanced search function to find out.11. KP: It allows easy searching of a huge range of resources, including the transcripts of Constitutional Convention debates of the 1890s and Hansard going right back to 1901. [↩]
(Continued)