Friday, March 20, 2009

Brian Pape's Constitutional Challenge

Brian Pape


The case brought before the High Court by University of New England senior law lecturer Brian Pape arguing that the $900 bonus payment in the Australian Government's stimulus package is unconstitutional has really fluttered the pigeons.

Brian and I share share some views in common. Like me, he is a new stater, wishing to see subdivision of existing states. Like him, I support clear demarcation of Commonwealth and State powers, with genuine state independence within their powers.

I am not suggesting that all of our views are common. They are not. However, I find it interesting that this case has come out of the political and historical tradition I so often write about.

The collapse of the New England New State Movement after the loss of the 1967 plebiscite removed one of the main forces pressing for constitutional revision, one that had had a significant influence on constitutional ideas at a national level.

The Movement wanted constitutional change to make new states easier to create. However, this required it and its supporters including David Drummond as its main constitutional writer to articulate broader principles as to the way the constitution should operate.

Like Drummond, I do not believe in blind state rights, nor do I believe that distribution of powers should be fixed for ever. However, I do have real problems with the creeping centralisation enforced through the Commonwealth's financial muscle. It doesn't work very well.

I also have real problems with the way constitutional discussion in Australia has become trivialised, really focused on single issues without looking at the underlying constitutional principles. 

The case is listed for hearing on 30 March. Mr Pape clearly has an arguable case or the matter would not have been listed. However, the ramifications for the entire structure of present Commonwealth-State financial relations are such that it is hard to see the Court ruling in his favour.

I shall watch with interest. 

No comments: