F***ing Federalism

The future of Australian federalism has been a much discussed topic recently among the commentariat of both mainstream and blogosphere. It’s hardly surprising given John Howard’s extraordinarily hubristic statement that Australia would be better off without state governments. Tim Colebatch, for instance, in yesterday’s Age characterised Costello’s current GST blitzkrieg on State governments as a crisis of federalism.

Conservative constitutional law academic Greg Craven made arguably the most cogent contribution a few weeks ago:

In its casual abandonment of its federalist conservative heritage, the administration of John Howard appears to have embarked on the greatest centralisation of power in Australia since World War II. Then, at least, inroads on Australia’s federal character could be justified as a response to the demands of total war.

Consider the fronts on which Howard’s troops are moving. Health Minister Tony Abbott would like to control hospitals. Howard and Workplace Relations Minister, Kevin Andrews, wish to dismantle state industrial relations subsystems. Attorney General Philip Ruddock seems determined to impose uniform defamation laws. Education Minister Brendan Nelson, easily the most enthusiastic of the power accumulators, wants commonwealth control of universities, a national education certificate and commonwealth technical colleges.

In their unadorned determination to exploit power while the going and the Senate is good, many of Howard’s ministers display no parallels with a Deakin or a Menzies, who reluctantly understood that constitutional restraints on the untrammelled exercise of power are a given good, even if and perhaps especially when they most irritatingly restrain you. …

Meanwhile, in the blogosphere John Quiggin has covered the issue here and here (the latter making a persuasive case for the proposition that Whitlam’s old idea for smaller regional governments in place of the states is silly and unworkable). And Gary Sauer-Thompson picked up and endorsed Craven’s article. RWDBs have essentially ignored the issue (although imagine how apoplectic they’d be getting by now if a Labor government was threatening to act in an identical fashion), with the semi-honourable exception of The Currency Lad, whose Santamaria socialist principles happily allow him simultaneously to embrace Howardian centralism and suggest that Quiggers and other lefties are just expediently hitching their waggons to the tired old federalist drafthorse.

One of the aspects that has gone largely unremarked in the current debate is the almost complete absence of the High Court of Australia as a possible factor in restraining rampant centralism, given that federalism was arguably one of the most critical features of Australia’s constitutional compact. Although the High Court blatantly abrogated its constitutional duty and threw federalism out the window some 85 years ago in the Engineers’ Case, the current Chief Justice of Australia Murray Gleeeson referred without irony to his Court’s imagined position as the “keystone of the federal arch” (a statement by Alred Deakin) in a Boyer Lecture a few years ago.

Even Greg Craven didn’t bother to mention the High Court’s federalist abdication in his recent article, despite numerous previous entertainingly splenetic attacks. including this delightful speech that I always prescribe for first year public law students so they can see that it really is possible to be passionate about rather than bored rigid by constitutional law:

When first asked to contribute a paper to this conference, the subject assigned to me was The Engineers’ Case: Time for a Change? In accepting this proffered task, it occurred to me that the answer to the question thus posed was a little obvious. It was like asking, “Bosnia: Is a solution desirable?“; or, “Dawkins: a disaster?”

Yet as I have considered the Engineers’ Case, and the school of literal constitutional interpretation which it has engendered, it occurred to me that the general topic of Engineers is a little more complicated than is usually thought to be the case. In particular, it became obvious that the parallels between the High Court’s cynical adoption of a centralising literalism in that case, and its equally cynical invention of implied rights pursuant to a subsequent change of fashion in judicial politics, have more than a little in common in terms of judicial method and interpretative ethics.

For this reason, a more accurate title for this paper might well be Literalism and the High Court: The Changing of the Fraud. What needs to be considered are not only the manifest deficiencies of Engineers-style literalism, but also its relationship with the Court’s newest constitutional three-card-trick, implied rights theory.

Here, it has to be acknowledged that all of us, even constitutional lawyers, have our own pet hates. These are instinctive, intensely negative visceral reactions, which are not necessarily inconsistent with, but which certainly transcend rational thought. Such hates are usually focused on such corporeal objects as football teams , politicians and television announcers. My own father-in-law, an intensely mild man, has a loathing of this type for the late Bert Evatt, which is so pronounced that the mere mention of his name is enough to produce a nervous rash.

It is against this background that I must admit at the outset that my pet hate in constitutional terms has always been literalism. I have hated it from my first encounter with the Engineers’ Case as a student. I have hated it with a growing passion as an academic, and the more I thought about it, the more I loathed it. I hated it when nearly every other legal academic in Australia thought it was little less than holy writ. And now, when many of its previous supporters have abandoned it in favour of implied rights theory, I find myself hating it just as much as ever, with a cold, dismissive detestation.

In short, I have always regarded literalism as intellectually bankrupt as a method of constitutional interpretation, and beyond this slight debility of admitted pre-judgment, would assert my utter objectivity in assessing its faults and virtues.

I tend to agree with Craven about the Court’s reasoning in Engineers, if not about its more recent implied rights jurisprudence. However, readers interested in finding out more about the Engineers’ Case would probably be better advised to read this more sober but equally readable Samuel Griffith Society speech by John Nethercote.

One fascinating aspect of Howard’s current attack on federalism is the depressing constitutional symmetry it potentially creates. Most of the centralising gambits of the last 85 years have been artefacts of Labor federal governments, which have been mostly very unsympathetic to federalism, seeing it as an inconvenient and unncessary conservative impediment to reformist zeal. Ironically, the centralist “reformers” are now the Tories, while Labor state governments are cast in the role of reluctant and mostly inept defenders of federalism. But the first major centralising blow was the High Court’s decision in Engineers, and one of the principal strikers of that blow was the young Robert Menzies, as Nethercote’s article explains:

Another at the bar table was Dr H.V. Evatt, destined for a later career which embraced the New South Wales Legislative Assembly, the High Court of Australia, the Commonwealth House of Representatives (Attorney-General and Minister for External Affairs, 1941-49; Leader of the Opposition, 1951-60) and the Chief Justiceship of New South Wales.

But it was upon Menzies that the light on this occasion shone so brightly. He described his situation as follows: “I was the sole counsel for the successful party. I was very young, twenty-five years old, and a success meant a great deal to me. In fact, I got married on the strength of it.”

A late starter in the case, he did not, from the perspective of the centralist advocates on the bench, miss a cue. Counsel for the Amalgamated Society of Engineers, Menzies endeavoured to secure victory for his clients by arguing that the functions involved were trading, not governmental, and thus not affected by Griffith’s federalist legacies. Starke, one of the plainer speaking Justices, complained that Menzies’ argument was “a lot of nonsense!”. Menzies agreed, “in what ¹ later realized to be an inspired moment”.

The relatively new Chief Justice, Knox, wanted to know why he was putting an argument he admitted was “nonsense”. As Menzies recollected: “`Because’, said the young Menzies (the old Menzies would not have dared to do this) `I am compelled by the earlier decisions of this Court. If your Honours will permit me to question all or any of these earlier decisions, I will undertake to advance a sensible argument’. I waited for the heavens to fall. Instead, the Chief Justice said: `The Court will retire for a few minutes?’, and when they came back he said, `This case will be adjourned ….. Each government will be notified so that it may apply to intervene. Counsel will be at liberty to challenge any earlier decision of this Court!'”

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It would indeed be ironic if a post-modern Tory in John Howard were to drive one of the final nails into the rotting coffin of Australian federalism. It would emphasise Judith Brett’s hypothesis that Howard, despite his cloak of social conservatism, is anything but the inheritor of the Menzies tradition of respect for rule of law and the constraints, checks and balances of liberal democratic constitutionalism (of which federalism is a primary element).

PS – I may well have broken the world record for mixed metaphor in this post, having described federalism variously as a raped woman, a drafthorse, a keystone, an object thrown out of a window, and a corpse. And it wasn’t even deliberate!

PPS – I should perhaps make an important qualification. Menzies was essentially a Deakinite liberal, and Alfred Deakin (like Isaacs and Higgins, the principal judicial movers in the overthrow of Griffith’s vision of federal balance in Engineers) saw in the Constitution an implication of strong national government rather than balanced co-equal sovereign federal partnership. Hence any portrayal of Menzies as a champion of federalism is a gross oversimplification. But Menzies was also a Burkean conservative, with a respect for rule of law, tradition, constrained power and constitutional checks and balances that John Howard conspicuously lacks.

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2. From memory, some historians have suggested that some aspects of Menzies’ account my be somewhat apocryphal[↩]