Archive for the 'Federalism & the Constitution' Category

Distributing blame in a broken federal system

“The federal government had delegated regulation of private vocational colleges to state governments.”

- Margaret Simons in “Exodus”, on the decline of the international student industry, The Monthly, November 2010

The feds do find constitutional tricks to control things over which, like education, they have no constitutional authority. But private vocational colleges have been particularly tricky as many of them don’t take the poison of Commonwealth cash. The feds cannot ‘delegate’ powers they do not have.

Comments like this one by Margaret Simons highlight one drawback of taking on all problems and using the states as sub-contractors. The Commonwealth gets blamed for things like dodgy colleges that are not its fault – or at least not beyond giving shonks an incentive to set up colleges as migration rackets.

Classical liberalism and bills of rights

Andrew Carr asks why, as a classical liberal, I do not support a bill of rights. My political identity survey last year found that among classical liberals only about a third supported a bill of rights, so on this I am not an outlier.

The apparent incongruity is that classical liberals support individual freedom, but oppose a measure that could protect freedom from ‘big government’ or the ‘tyranny of the majority’.

Part of the answer is that virtually all classical liberals believe in democracy as well. Though much has been made of the ‘tensions’ between liberalism and democracy, which obviously can occur, there are also many parallels.

Both give significant weight to the preferences and knowledge of ordinary individual citizens, who ajudicate on the choices offered to them – by parties and candidates in the political sphere, by firms in the economic sphere, and by varying traditions and associations in the cultural sphere. Read the rest of this entry »

Constitutional rights and ‘divisive’ issues

Some bloggers were unimpressed with this justification from Attorney-General Robert McClelland for not proposing a charter of rights:

Let me say at the outset, that a legislative charter of rights is not included in the Framework as the Government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community. [emphasis added]

Guy Beres thought that the ‘absence of any legal bedrock on human rights in Australia is a fairly considerable source of division and uncertainty’. Kim at LR agreed.

The charter itself would have been within the usual range of ‘divisive’ issues, ie those issues on which significant opposing groups both feel strongly. It would have flared for a while, but probably not have entrenched significant on-going conflicts or resentments. The losing side would have had a chance to present its full case, and would have been left with an opportunity to raise the issue again in the future.

But presuming that the charter was just the first step (or the first part of the slide down the slippery slope, depending on your perspective) towards constitutional rights protection then I do think it has significant implications for the way we handle ‘divisive’ issues. Read the rest of this entry »

No charter, but too many ‘rights’

The government has decided not to introduce a charter of rights. Instead, they will introduce greater human rights scrutiny into the legislative process and increase human rights education campaigns.

While on balance I think that no charter is the right decision, the process of drafting and debating it would have had one distinct advantage over the chosen policy path. This would have been to focus attention on which interests and freedoms really deserved to achieve quasi-constitutional status as ‘human rights’, and which were things that should be the stuff of ordinary political debate.

Instead, the government has decided that ‘human rights’ are all the contents of the seven international rights treaties that have been signed on our behalf by various executives (this is not a democratic process; treaties do not require ratification by parliament). New legislation and delegated legislation will need to have a statement that ‘assesses its compatibility’ with these treaties.

The International Covenant on Economic, Social and Cultural Rights in particular has provisions that are, as Jeremy Bentham famously described rights, ‘nonsense upon stilts’. It is a social democratic wish-list. Take for example this one on higher education: Read the rest of this entry »

Vertical federal competition

The latest Newspoll survey on federalism sponsored by Griffith University has another small piece of evidence that the Pincus position – the idea that Australian federalism works principally through vertical interaction and competition between the Commonwealth and the states rather than horizontal competition between the states – may have popular support.

A question on features of federalism (there are several in the survey, but the answers to most have not been released) asked whether ‘different levels of government being able to collaborate on solutions to problems’ was desirable, and more than 90% said yes. While respondents may have had in mind better bureaucratic coordination, like the two houses in a bicameral system two levels of government in a federal system may offer different perspectives, interests, experiences and abilities.

The current situation in which Victoria, with extensive experience of a case-mix system of hospital funding, is putting an alternative to Kevin Rudd’s hospital funding plan into the national debate is a good example of how the policy competition that is supposed to be a feature of horizontal competition between states can also work vertically. Read the rest of this entry »

Malcolm Fraser’s liberalism

Malcolm Fraser’s biography is actually called Malcolm Fraser: The Political Memoirs, but according to his biographer (or narrator, as she calls herself) Margaret Simons ‘Enduring Liberal’ was one possible title, perhaps with a question mark. The book makes clear that Fraser has seen himself as following a liberal philosophy through his long political life, though a pragmatic one.

Fraser’s reputation on this is perhaps worse than it should be, because over the last few decades the most contested freedoms have been economic, and his record as an economic liberal isn’t great – though the biography argues persuasively that it is better than many assume.

A chapter on financial deregulation shows that there was a lively internal debate within the government, with Fraser and his office generally pushing for less regulation, while Treasury and the RBA took a more conservative line. By the time Hawke and Keating actually implemented financial deregulation much of the thinking, discussing and planning had already been done. In this sense, Fraser laid the groundwork for what followed. Read the rest of this entry »

Are overlapping state and federal responsibilities a good thing?

An Essential Research poll published today on Pollytics blog is one of the most interesting I have seen on federalism:


Question: Do you think the following services should be mainly the responsibility of the Federal Government or State Governments?

I suggests that the Australian public is not quite as centralist as other polling can lead us to believe. The federal government does not have majority support for exclusively taking over any of the areas of traditional state responsibility – though they are ahead of the states on all but water supply. The interesting point in this poll is the significant support for joint state and federal responsibility. Read the rest of this entry »

The myth of Commonwealth competence

During the week, as Pollytics blog reported, Essential Research found strong support for a Commonwealth takeover of hospitals.

But as The Weekend Australian‘s editorial argued, the lesson from the insulation fiasco is that it is time to think again about what it called ‘Big Canberra’ – the belief among senior politicians of both parties, often supported by a frustrated public, that the Commonwealth bureaucracy can succeed where state bureaucracies have failed. Read the rest of this entry »

When can religion influence politics? (or why a Christmas public holiday is OK)

We have finished the year with worries about the border between religion and politics – the Fairfax feature, Charles Richardson’s warning that Rodney Smith is too sanguine about the influence of ‘fundamentalists’, and Ross Fitzgerald’s why-oh-why piece on the fate of ‘secular democracy’. Implicit in these critiques seems to be a quasi-constitutional belief that religion has no place in the public sphere.

Ross Fitzgerald, for example, seems to be particuarly upset about the millions spent on World Catholic Youth Day. But why is this different from the numerous sporting and other major events that get state sponsorship? As Chris Berg argued during the week, the benefits of these events are typically fictitious. But given politicians like sponsoring international events, are the Catholics illegitimate in a way the petrol-heads who descend on Melbourne for car racing are not?

Fitzgerald and Charles are both concerned about religious influence on Stephen Conroy’s internet filtering plans. But given that there are also mundane secular reasons for this policy – such as Conroy says enforcing the existing censorship rules – does the fact that the Australian Christian Lobby is backing Conroy make the policy worse (especially as ACL is appealing not to religious values, but to the not-terribly-controversial view that children should not see pornography). Read the rest of this entry »

Another nail in federalism’s coffin

Another cut in the death by a thousand cuts of Australian federalism is barely news these days, but it is still worth noting Friday’s agreement by all states except Victoria and Western Australia to refer powers to the Commonwealth for a national vocational education regulator.

The Ministerial Council for Tertiary Education and Employment also agreed to establish the Tertiary Education Quality and Standards Agency announced in the May 2009 Budget. Its governance arrangements are to be discussed at a future MCTEE meeting, but expect another referral of powers.

In 2005 I published a CIS paper opposing further centralisation of education power in Canberra. My reasons related to Commonwealth incompetence, threats to academic freedom, and the usual federal arguments to do with spreading risk and learning from policy experiments. I’d use some different examples if I was writing that paper today, but the arguments still apply.