Chasing the Norm

Australian academic and blogger on politics, international relations, and culture

Wither States Rights?

australia_flagIn a pleasing sign, the ACT assembly, with the support of the ACT Labor Party and the Greens has passed a bill allowing same-sex couples to have a legally binding ceremony. Gay couples can already bind themselves into a legal union, a change reluctantly accepted by the federal government, but last year Rudd decided that allowing that union to be publicly celebrated would be too much like marriage. The word petty doesn’t even begin to describe such a complaint. The Labor Party chose not to to support such unions at its national conference, and it’s probable that Rudd will again veto the legislation.

This raises a challenge for progressive however. Despite spending the 20th century fighting states rights, recognising it for the conservative impediment it was, in many areas such as social or environmental law, progressive ideals are best served by giving local communities far more of a say. Hopes in the federal labor party have faltered, as it has looked to ensure nation-wide support (rather than just majority support), and shown great hesitancy to risk taking. Interestingly, this shift is also occuring at the same time as the Liberal Party has just finished fundamentally walking away from promoting a states rights agenda. So should Progressives deliver the killing blow to states rights, or are recent developments signs that this is more prosperous ground than previously thought?

For future historians, one of the most important facets of the Prime Ministership of John Howard, was the virtual death of the States Right’s viewpoint within the conservative parties. Howard invoked the idea himself comonly when in Fraser’s government and during the 1980’s wilderness in opposition; by the time he returned for a second showdown, the heat was largely gone. Against Keating Howard positioned himself as one who would govern “for all Australia” against the sectional and geographic interest groups, a stance he would keep throughout his time in government. He wouldn’t even support his home state NSW in the State of Origin games, such was his desire not to be seen as supporting one state over others (or even supporting the states at all!)

There’s ample evidence (such as from Costello’s memoirs and Howard’s own musings on the subject) that this was a practical solution, rather than a philosophical shift, and came in response to a current political threat. Namely that the people would blame the federal government regardless of who was responsible, and that the State Governments were largely hostile to going along with Howard on most issues, most of the time. That said, the shift also re-enforced Howard’s growing sense of control and dominance, as he increasingly sought to leave his mark on the country, and deliver on the public trust invested in him through 4 separate elections. Howard not only changed the country, he also changed his party. Time in government converted many to similar views, and Howard’s views became gospel as older members retired, and younger, more impressionable ones came in. Practice eventually becomes principle, and the Liberal Party today under Turnbull, Abbott & Minchin has barely touched this criticism of states rights, despite its favored son status for conservatives in opposition for the last 108 years in this country.

This change in conservative thinking should have progressives cheering. After all, states have been (and were designed in the 1890’s Constitutional Conventions to be) strong impediments to any social change that may have upset the status quo or reduced the influence of men of property (Hence the Senate starting life as a States House, to review what the mobs in the House of Representatives proposed). Equally, there is good evidence that there was a big influence from current American trends on Australia’s constitution writers (especially Griffith and Barton) which lead to pushing a very minor, restricted federal government. Most people who follow politics will have heard of section 51. of the constitution. The reason it is well known however is that it is the only section which distinctly lays out the powers of the federal government. Anything not mentioned is assumed to be entirely under State control. Our constitution is not there to guarantee the rights and liberties of the citizens, it is there almost exclusively to give chains to the States to tether down the inevitable King Kong of National Government that they were reluctantly accepting.

So, given this history, the end of conservative support for states rights ought to be a good thing. The example of the ACT however suggests that there is an alternative: that progressives should now look to focus on the states where they can pass such legislation, or better marshal power such as to stop at the source developments such as the Tamar Valley Pulp Mill or the Mary River Dam. While Federal Labor supported the former and has just rejected the later, both were pushed by their state governments, which have fallen under the sway of and indeed often become corrupted by development companies as progressives look federally. Those with talent and a desire for being in parliament on the progressive side are almost universally looking towards Federal Seats, leaving many also-rans and backroom hacks in charge of the station (See Rees Government). Likewise on issues such as drugs, euthanasia, public transport, land use, and household trends (such as towards environmental efficiency) these issues either are still state issues, or have a greater chance of change at a state level.

So progressives are in a bind. They have an unparalleled opportunity to sign the death knell to the states rights argument from preventing progressive change, perhaps even to reform/do away with the entire states system (as the decidedly non-progressive Banaby Joyce advocates). Such changes would this be good policy in removing inefficiencies, ensuring uniform standards and laws, and overcome vested interests on national issues (everything from fixing the Murray-Darling to introducing a R18+ rating for computer games).

Yet the barriers to passing progressive legislation are significantly lower at a state level these days, with a cumulative effect in practice, meaning good progressive policy in one state tends to end up in the others (eventually). Equally many potential problems (such as corrupt/badly designed development) can be addressed before they become major issues. Add in the ‘common wisdom’ that progressives are more trusted on day to day domestic issues, whilst conservatives for outward looking concerns (the so-called daddy/mommy divide), which if not quite true at least benefits progressives electorally at a local level. Then again, they must also consider the thought experiment that if the situation reversed and a Federal Government introduced same-sex marriages and a single state dissented, would they keep supporting states rights.

For ACT residents it has been rumored that the Minister for Territories Brendan O’Connor would like to see a change to let the ACT govern itself, relieving the Federal Government from having to decide on such issues, as same-sex marriage. Nothing has occurred yet, and won’t before this bill is due to be addressed, but it would be a very positive sign considering the significant discrimination faced electorally by ACT residents.

No change has been bigger in Australia’s political landscape than the isolation of state government concerns from the dialogue of federal politics. Yet whilst this has come about because Conservatives under Howard walked away from their historical position, progressives ought to take their finger off the trigger for a moment or two to consider the real benefit of such a change. We are yet to see if Rudd will go ahead with his election ‘promise’ to takeover the health system, but if so similar moves in education wouldn’t be too far behind.

Certainly something to keep an eye on, the historic forces are shifting, but it may be a while till we see where the pieces finally come to lie.

Photo by jemasmith used under a Creative Commons Licence

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  1. Sus

     /  November 12, 2009

    It’s great to see someone writing about ‘states rights’. I agree with you that the death knell on this political idea, in Australia, was really sounded when John Howard stated that he saw ‘no inherent value’ in states rights. This frank admission arises in the context of the interpretation of the Commonwealth Constitution by a serially misguided High Court.
    The approach taken by the High Court to the interpretation of federal powers: the potential construction of the corporations and external affairs powers, in particular, is now such that almost any policy area could be subject to federal rule, if clever constitutional lawyers are involved. This has meant that it’s been politics, not law, which has determined the allocation of powers in Australia in the last 60 years – and that outcome, which leads to an undemocratic lack of accountability, certainly should be troubling for conservatives and progressives alike.

    I think there are two important reasons why progressives should rue the current state of affairs and act to achieve federal reform which would revitalise the states. The first is that the very high vertical fiscal imbalance means that states simply do not have the money to carry out their social spending goals. Would the NSW health and transport systems be in their current malaise, if state governments were adequately resourced? No. The recent 4 Corners investigation into NSW public transport demonstrated very clearly the importance of federal funds. Having said that, progressives ought to support some level of VFI to ensure equity between regions.

    Secondly, in a system where politics, not law, determines the allocation of powers, efficiency has becoming a political lightning rod. Efficiency appears to trump all other concerns: it is for the sake of ‘efficiency’ that there are national standards in areas such as competition policy (a cornerstone of the neo-liberal economic reform in Australia), national regulations for consumer protection, etc. Arguments favouring local democracy simply have no currency when the trump card of efficiency is played.

    A great report on this was written by Anne Twomey and Glenn Withers, for the Council of the Australian Federation if you haven’t seen it – it’s naturally fairly partisan towards an aggressive principle of subsidiarity, but I think it shows the strength of the progressive argument for local governance.

  2. Hi Sus, thanks for an interesting comment & that link.

    You’re right about the critical role the High Court has played in allowing this change. It’s a far cry from what Griffith & Barton thought, influenced as they were by the US Supreme Court of the 1880’s & 1890’s which favoured minimal central governance, and only a federal union.

    I don’t entirely agree that it is a lack of funds that is the cause for many of the states issues, though it has hurt (and lead many to try privatization schemes to get the cash). The deamonisation of taxes and debt has also been critical in preventing long term planning.

    As for Local Democracy – That’s an important issue I missed in my post. I’m not sure what form it would take, local community councils/govt consultations are usually poorly attended, and of little public interest. Many would see it as an added burden.

    That said, add a controversial issue such as fireworks (in the ACT) or environmental plans and people want a say.

    Perhaps a California style citizens referendum is a good idea, though that has had disastrous economic consequences as it has almost banned any tax rises, mandated massive social spending, and so sent the state spiraling into debt.

  3. Sus

     /  November 13, 2009

    I’m sure there is empirical research about this, but I would guess that where local decision-making bodies have real power, people care a lot more and participate a lot more. As you say, where a controversial issue is raised or one that affects people’s lives, they do get mobilised.

    I think it’s important to distinguish between local governance and direct democracy – the California example is a failure of the former, not the latter. What the two issues have in common though is that the locus of accountability and decision-making has been displaced. Where one government is held accountable by decisions made at another level (whether a higher level of government or the direct demos) you get serious problems.

    It’s a trite complaint, but the media cycle, short-termism, electoral priorities etc that typify our current political system means that serious long term reform is never properly addressed.

  4. Sus

     /  November 13, 2009

    *latter, not the former*.