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21st century federalism « Previous | |Next »
November 15, 2006

The High Court this week gasve a legal victory to the Commonwealth with its decision in the Work Choices case. As Ian Callinan observed in his minority judgement:

This is one of the most important cases with respect to the relationship between the Commonwealth and the States to come before the Court in all of the years of its existence. If the legislation is to be upheld the consequences for the future integrity of the federation as a federation, and the existence and powers of the States will be far-reaching. The Act in its present form is well beyond, and in contradiction of what was intended and expressed in the Constitution by the founders.

The decision confirmed that a gradual shift of political power to the centre of our federation during the 20th century will now be permanent. The commonwealth has become all powerful, as Canberra can now make any laws under the corporations power as long as they are directed to what companies and its employees, agents or customers can or cannot do. The commonwealth now has the power to micro-manage any corporation that engages in trade.


That is a very expansive reading of the Constitution when all that was required was the need to establish a national industrial relations system. The High Court has given the Commonwealth the authority to take over traditional state areas such as universities, health, water, energy.

The reality is that Australia is no longer a federation of colonies or autonomous states, but a national economy in which the mainplayers are companies that trade. That is an economic reality. But Australia is not just a national economy: it may no longer be a co-ordinate federalism with its seperate state and commonwealth spheres, but it is a political division of powers between state and federal governments. That is the political reality.

What has been delivered is the marginalisation of the states with little check on the authority of the power of the minister (the executive). There was nothing about ministerial power reducing democratic scrutiny and public debate on important public questions about workplace bargaining. So we rely on the Senate to protect us from the ceding of parliamentary power to the executive.

So much for the High Court being the guardian of a democratic constitutional federalism based around checks and balances. And the conservatives, who once defended state rights, are now diehard centralists whilst the old ALP centralists are the defenders of the states.

| Posted by Gary Sauer-Thompson at 4:08 PM | | Comments (0)