Saturday, February 03, 2007

Constitutional Change in Australia - the view from 1926: Three streams of constitutional thought

In my last post I introduced David Drummond's 1926 booklet Constitutional Changes in Australia.

Drummond began by dividing Australian constitutional thought into three schools, the state righters (today we say states righters), the new staters and the unificationists.

The state righters were those who believed in the Federation as then constituted, including the existing structure and the existing distribution of powers between Commonwealth and states. By contrast, the unificationists wanted to abolish the states and replace them with counties with delegated powers operating under central control in a fashion similar to that in Britain. The new staters occupied the middle ground: they wanted to retain the Federal system but replace the larger states with smaller states while redistributing powers between the Commonwealth and States.

The State Rights Position

Drummond rejected the state right position out of hand. He had previously argued that Commonwealth and state powers should be redistributed, and now regarded it as self-evident that the present division of powers could not be right and proper for all time.

He was prepared to accept that, given the existing constitution, the states should predominate in Commonwealth-state disputes in order to prevent duplication of activities. However, he pointed out that the High Court's decision in the Amalgamated Engineers' case had already destroyed this position beyond recall by establishing the principle that, subject to certain qualifications, a wide construction could be placed on Commonwealth powers through the interpretation of the Constitution in a literal sense, regardless of the consequent overlap with, and impact on, existing state activities.

Drummond ended by dismissing the state rights school as lacking in any "understanding of the new national spirit abroad in Australia which is demanding a settlement of the anomalies which this very school succeeded in fastening on to the Federal Constitution."

The Unificationist School

Drummond's position towards the second constitutional school, the unificationists, was very different.

Many of the arguments put forward to support the unification school were similar to those used by the separatists (new staters) to justify their position. To gain statehood, the separatists had to defeat the state righters with their support for the status quo. But they had also to overcome the distracting road block created by the unificationists. For that reason, Drummond devoted a number of articles to first defining and then rebutting this school.

Unification, he suggested, was expected to bring many benefits: one parliament would mean reduced costs of legislation, one government would mean reduced costs of administration and greater efficiency in handling Australia's problems, while uniform laws would reduce friction. However, in practice unification could not deliver such benefits.

Dealing first with the cost of Government, Drummond distinguished between the cost of government policies and programs, the general costs of the civil service and the administration, and the costs of parliamentary government, that is the parliaments, ministers, politicians, electoral arrangements, royal commissions and select committees.

On the cost of policies and programs, Drummond suggested that the cost of most programs, defence for example, were independent of the system of government and should not be blamed on it. On the cost of administration, he attacked the popular idea that Australia had too many government employees, suggesting that in some cases such as teachers it had too few. In any event, the creation of a unified civil service was likely to increase, not reduce, the size and cost of the civil service since it would require the creation of a new hierarchy of public servants over and above the existing state services.

So far as the cost of parliamentary government was concerned, Drummond suggested that there seemed to be the assumption that every citizen carried the cost of seven governments. This was a fallacy; each citizen supported only two, the Commonwealth and one state, plus of course whatever system of local government was in vogue in that state. He also pointed out that while the average cost per head of parliamentary government (Commonwealth plus the relevant state) varied from state to state, the national average at three shillings and five pence was very low, "little more than the cost of registering a dog." There was no reason to believe, he suggested, that the cost of a union government plus provincial or county council would work out less than three shillings and five pence per head.

Drummond then turned to the likely impact of unification on the legislative process. He started by suggesting that laws were "merely the means of regulating forces by directing them into proper channels." Should those channels not exist or become blocked, then the result was grave unrest among the people affected. By its very nature, legislation tended "to standardize the conditions under which people must live and conduct their business." As a result, "practically every law inflicts some hardship on someone or other." This outcome, which was usually justified on the grounds that you can only legislate for the great majority, was not acceptable in Australia because of its size and geographical diversity.

To support this point, Drummond pointed out that Australia's growth had led to a growth in the volume and complexity of legislation. Since much of this legislation related to specifically local issues, its transfer to a union parliaments would overload that parliament with relatively trivial matters, In this regard, the war had involved Australia in international relationships "which must and should absorb a great deal of the attention of our statesmen." However, this job could not be done efficiently "if our statesmen are submerged in a mass of local legislation and detail, or harassed by friction as at present, with States over-conscious of their dignity and importance."

Already, Drummond suggested, the Commonwealth Parliament had failed to use to the full its powers in important fields such as marriage and divorce legislation. "Nothing is more embarrassing than the artificial restrictions caused by the State boundaries, and nothing more desirable than uniform legislation in regard to these matters."

The obvious answer to any overload problem was to leave all minor legislation to the country or regional councils. To Drummond, the key issue here was the powers to be given to such councils. Should they be given legislative powers free from outside interference then they would, to that extent, become new states in their own right. "It is necessary that this should be clearly understood", Drummond wrote, "as it is very evident that many people who call themselves Unificationists are really New Staters, or at least they believe in a large number of States with reduced powers and paraphernalia of State."

To those who wanted the new councils to have delegated powers only, leaving the central government with right of veto, Drummond had a simple answer: he pointed to the experience of local government in NSW. There the central government had drawn all power to itself, "leaving but the shadow to the local governing authorities."

This result, Drummond suggested, was inevitable in a unitary system; "whenever a political party sees the opportunity of strengthening its position at the expense of something or someone else, it will not be deterred by purely academic considerations."

The New Staters

In the last sections of Constitutional Changes in Australia, Drummond articulated principles that should underlie constitutional change and linked these to the new state position. I will look at this in my next post.


Lexcen said...

Drummond seems to be a very astute thinker and his observations are as relevant today as they were in 1926.
Needless to say, leave out the reference to 1926 and it could be a progressive thinker of today putting forward new ideas.

Jim Belshaw said...

It's interesting, Lexcen.

I wrote the material I am drawing from in 1982. My focus was historical, but I was interested then in the continued relevance of the ideas. Now revisiting it in 2007, 25 years later, the same thing holds.