Judy Jackson, Tasmania's Attorney General, has announced that Tasmania will join New South Wales and Western Australia in challenging the constitutionality of the Howard Government's IR laws. I think this a good thing. Anything that can stall the rampant anti-federalism emanating from Canberra is a positive. The States need to be more diverse and heterogeneous in their economic policies. Canberra dictating from afar is not a good thing.

I could not find any statement directly by Judy Jackson. So I am dependent on the ABC political feed and the Mercury internet site for any scrap of news on the issue . Note to Judy Jackson; you can speak to me, and anyone else directly by either posting it on the MHA website, a personal website, or a blog. Coverage by both the ABC and Mercury is pretty poor. I couldn't find anything in the Examiner's website . Which is even worse in terms of usability than the Mercury's. Tasmania's politicians and news outlets need to become more internet friendly.

From the Mercury article ;

Ms Jackson said the reforms would create uncertainty and insecurity and "will guarantee that workers will be exposed to bullying, coercion and harassment".

Women in the workforce would be especially vulnerable, Ms Jackson said.

She said the laws would remove all protection against unfair dismissal for most women in Tasmania and there would no longer be any compensation for redundancy for most women workers.

She said new state laws -- to take effect from February 1 -- would, in part, help to protect existing conditions of employment for many.

Nothing there about the IR laws being illegal and unconstitutional federal encroachment on state rights and responsibilities. I presume the law case is not about whether Tasmania or the Federal government can be "fairer".

Rene Hidding, Opposition leader in Tasmania offered;

"The state Liberal team fully support the Howard Government workplace relations reforms to provide higher wages, more jobs and a stronger economy and the Lennon Labor Government needs to stop scaremongering on this issue."

Anti-federalism and unitary government was never a Liberal platform. Since Gorton embraced the federal system as the sole authority for policy making, and the states simply being to disburse the funds in support of federal policy, the Liberal Party has become anti-federalist.

All the major parties in Australia are hostile to federalism, Liberal, Labor, Greens and Democrats - all see the states as being dissolved and there being no government between the federal and local council level. In reality the thin levels of government are supposed to be the federal and local levels with the state government carrying the most responsibility and weight of governance.

The federal and local levels of government are supposed to be focused on specific areas and problems of governance. If it does not have international significance, then the federal government should not be involved. For instance, foreign policy, international relations, defence, inter-state tariffs etc are natural federal responsibilities. Education, Health, and Industrial Relations are not.

Guy Barnett is quoted as saying;

This political stunt by the Tasmanian Government and other Labor state governments is doomed to fail, because they know that where there is a conflict between state law and federal law the federal law will prevail.

They are deliberately wasting taxpayers' money for purely political reasons.

Barnett is right. One of the most anti-federalist institutions in our country is the High Court of Australia. The Australian Constitution is a static document, almost impervious to change. Referendum's fail as a matter of course against it. Lionel Murphy changed the High Court from one of strict legalism, to one which saw the constitution as a living breathing document that could be moulded by Judicial decisions. Not the will of the people through referendums, but by High Court interpretations. Murphy wrote;

The Australian constitution does not express all that is intended by it: much of the greatest importance is implied. Some implications arise from consideration of the text: others arise from the nature of the society that operates the constitution.

Why don't we just admit the truth. The "Bearded Men" did a half-arsed job with the Constitution such that it is a pre-enlightenment view of government. Further, they made it so hard to change by referendum that politicians and judges run an end-game around it with implied intentions and meanings. This largely goes without approval of the people and ends up with a massive collapse of power to the centre - in this case Canberra. Australia was founded on federalism and the heterogeneous protections that gives from tyranny, political entropy and unitary outcomes.

A common cry is that the judicial, rather than interpreting the constitution, is activist and making judgements that are more legislative than juridical. The judicial is treated as a specialist position and given tenure to hide it away from political or populist influence. Unfortunately the judicial often takes matters into its own interpretive hands and expands the power of those that appoint them.

There is very little check and balance on the Australian Judicial branch. Since 1986 the High Court of Australia has been the highest court in the country, displacing the Privy Council in the United Kingdom as the highest court of appeal. Since 1968 the High Court of Australia had been the highest court of appeal on constitutional and federal issues.

In Australia the Prime Minister or Premier appoint Justices without oversight beyond the Executive Cabinet. This is in contrast to the stronger checks and balances in the US system where the Executive recommends a judge/justice to the Legislative who must then approve it.

This is a simple check on Executive stupidity and political appointments . In the Australian form of Westminster separation of powers demands that at the least the upper-houses (Senate and Councils) have no members of the Executive Cabinet in them, making them purely Legislative.

The Executive Cabinet would be required to recommend judicial appointments to the Senate/Councils where they would need to be approved by majority after public debate on the appointment.

Lionel Murphy changed Judicial doctrine in the Australian High Court quite drastically, believing that it was up to the High Court to make the Australian Constitution a living breathing document. This is in part because the Australian Constitution is poorly written and almost impossible to change under the referendum requirements.

It is also part of another doctrine that has infected Australian federalism since its inception of entropic and dynamic collapse of all power to Canberra. The Judicial has aided, abetted and accelerated this process.

As adam commented , this has been achieved by seeking obtuse nuance in what is clear constitutional language;

What's insidious about the constitution being changed through common law, eg in the US, is that the relatively clear language of the original document is interpreted to become a term of art. Eventually the succession of rulings can become so distant from the original text that to compare them side by side is an exercise in absurdity or even deconstruction.

The recent US ruling on eminent domain seems the perfect example of this to me. This is also what's behind the US doctrine of originating intent. I'm not sure whether the court is able to heal these rifts itself.

So how do you save the judicial from its own over-reach?

The Constitution represents the limits on Executive, Legislative and Judicial authority, which the Judicial is the final interpreter of; but it contains few limitations on the Judicial ability to act. Australian justices are required to retire at seventy-five, while in the US they just die on the job.

In a federal system, federalist over-reach is supposed to be stopped by the unitary components - the states. The Senate is composed of state membership, but political parties and party discipline have corrupted that check and balance on the federalist system.

Yet constitutional challenges to legislation have often involved a majority, or near majority, of states. For instance the challenge to Workchoices comes from NSW, Western Australia and Tasmania.

Is it possible that a check and balance on poor Judicial performance by a Justice, such as one that is opposed to a strict reading of the constitution, and who brings anti-federalist interpretations can have their position on the High Court challenged by the states.

This could act as a Judicial form of impeachment that would require a majority of states and state parliaments to pass legislation requiring a Justice's removal.

There would be the fear that this would politicise the Judicial arm of federal government but since most of the appointments to the High Court are political rather than based on merit or specialist history, then this is not necessarily something that is not occurring already.

This check and balance would be that tenure can be revoked by the states.

Bryan Palmer has an article on ozpolitics that what is deemed constitutional is ultimately in the hands of the Judicial and not legislative fiat. The High Court under the doctrine of separation of powers is the highest authority to interpret the Australian constitution. But our Westminster style of constitutional law makes government complex and unknowable from the citizen's point of view. It is a fair expectation, in my opinion, that a constitutional system can be read explicitly by a citizen to understand the limits of their government.

Overreach

I recently made a quick comment on Polemica about the report from the Department of Education on establishing an Australian Certificate of Education. In that comment I pointed out that Part V of the Australian Constitution contains no explicit language on education.

While I think an Australian Certificate of Education is a good example of rampant anti-federalism; demanding compliance from the states, without explicit authority, and most likely without funding; there is warning in there for the constitution to move so far from its concrete bounds that it isn't easily understandable.

The constitution acts as the citizens contract with government. It places distinct limits on the actions of the executive, legislative, judicial and government. If the weight of legislation that has been judged by the high court is sufficiently outside of an explicit reading of the constitution it becomes not readily knowable to the citizenry.

Government evolves into an arcane area of complexity and specialisation beyond the general understanding of the citizenry. Since government is drawn from the people, this is a barrier to civic participation and understanding.

In analogy to the principle of make enough laws and everyone is a criminal; a poorly written constitution that is not explicit, will ultimately result in nearly everything being constitutional.

If a citizen is trying to understand whether education is a valid area of federal authority, then they will look to the constitution for that word. I think it is fair that they would expect to find it.

Judicial Doctrines

It does not help that differing doctrines have been followed by the Australian High Court since its inception. From Samuel Griffiths' highly states' rights denial of the constitution he helped write, to Lionel Murphy's doctrine of the constitution being a living and breathing document that the judicature can breath life into - if the referendum process cannot.

We give the Judicial branch tenure with the goal of making them non-political positions, presumably populated by specialists. Yet most of the appointments are highly political and judges are more likely to be drawn from the political ranks than the heights of legal achievement.

This structure provides an entropy of growth that is incapable of contracting. The only possible outcomes are the stasis or expansion of constitutional law- not contraction.

Conclusion

Australia does have a Westminster tradition where constitutional law can be embodied across many acts and court decisions. This is an ineffective way to reign in expansive central government; a particular problem in federal systems where the central government will vie for tax and policy authority with the states.

Possible solutions;

• A tight and inflexible constitution at the federal level
• An energetic executive arm that can force bills to be tested by the judicial for constitutionality before they are signed into law (Think workchoices, if it is over-turned it will cause problems for employers having to return to the state systems. If there was doubt, it should have been tested before becoming law)
• A bicameral judicature with a lower jury chosen from the citizenry to actively review executive actions and legislative bills. (I know of one CFC entry being written with a highly innovative approach to the judicature!)
• Periodically rejuvenate the constitution to collapse it to a single bill/document (Canada and Queensland recently did this)

With globalisation moving activity from small arcane groups of the elite to the wider citizenry, the tight industrial structures are starting to collapse and fray under the pressure.

Westminster government is an industrial structure. It will have to introduce ratification, sortitionist and spontaneous citizen involvement in government itself. This is necessary just to remain relevant, let alone strengthening the civic, social, cultural and economic health of Australia.

One of the best examples of group wisdom is the economy. It is a highly decentralised structure. Mutual funds, index funds and spyders are examples of trader simplifying the system for citizens. Like any good market, the mountain came to Muhammad, and not the opposite.

Australian constitutional government will have to do the same, and come to its citizens.

Central to republican philosophy is that prosperity is impossible without maximum liberty. A central component of maximum liberty is freedom from tyranny and arbitrary government. Responsible government sees the legislative as the dominant branch in government, republicans distrust both the executive and legislative. Republicans see both branches as equally capable of limiting liberty and enabling arbitrary government.

During Federation the likes of Samuel Griffiths, Edmund Barton and Charles Kingston eschewed republican innovations in constitutional government and instead adhered to the principles of responsible government - namely leaving out a Bill of Rights. This enabled High Court justices such as Lionel Murphy to introduce the doctrine of 'constitutional implication'.

The American Republic was essentially a repudiation of responsible government as the most effective form of constitutional order to free individuals from tyranny. The 'irritant cause' for the American Revolution was a tax, something that the legislative, ie British Parliament, leveraged against the American colonists.

It is important not to go overboard in terms of responsible government as it has been an effective form of constitutional government in its various mutations in Australia, Canada, New Zealand etc. However due to poor separation of powers and weak constitutionalism it is less effective than a republican constitution and government. Responsible government was built around a hack, to remove the formal executive power of a monarch without reducing their ceremonial and national power. Due to this original hack, it has become a system of patch on patch, maintained by spaghetti convention layered on top of archaic practice.

The US Bill of Rights protects freedom of political speech with a single line, from the First Amendment;

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This is a restriction on the legislative. Since the legislative can make no law abridging freedom of speech, the executive can enforce no law doing the same. Restriction of speech is inherently restrictive, and ultimately of an arbitrary form. The greater danger to republicans is that restrictions of speech will be used by the legislative and executive to silence dissenters. A constitutional right to freedom of speech becomes a just basis of any political relationship between individual and government.

Americans when faced with situations where government is contemplating the restriction can state quickly and easily, "Congress shall make no law that abridges freedom of speech". Liberty, rights and constitutional order are easily known, easily remembered and expressly available to the individual.

Australians have to wade through recent High Court decisions to find anything similar. And in this the Justices have put together a tangled web of implied suggestions from the constitution, responsible government and the basis of political government. One sentence becomes a hard to understand, not easily accessible, amorphous and intangible set of principles.

Compare this to the concrete and explicit nature of the republican language on freedom of speech. One concrete sentence.

One of the cases that has helped established the principle of 'implied' constitutional freedom of political speech is Australian Capital Television vs the Commonwealth. In this decision the justices argued that the Constitution describes representative government which cannot function correctly without informed voters. The implication of this is that political speech must be protected from legislative abridgment. Justice Michael McHugh writes;

25. The short answer to the Commonwealth's contentions is that the powers

conferred on the Commonwealth by s.51 of the Constitution are conferred "subject to this Constitution" and that the Constitution embodies a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people.

Under the Constitution of the Commonwealth of

Australia, those freedoms have been elevated to the status of constitutional rights. The powers conferred by s.51 of the Constitution give the Commonwealth no absolute power to exclude electors, candidates, or information from the

federal electoral process. ...

26. The constitutional rights identifiable in ss.7 and 24 of the Constitution - freedom of participation, association and communication - exist so that the people of the Commonwealth can make reasoned and informed choices in respect

of the candidates who offer themselves for election. Laws which interfere with the flow of political information or a category of political information simply because it is political information are an interference with the

constitutional rights conferred by those sections.

However, the rights identifiable in ss.7 and 24 are not absolute rights. They are rights conferred

for the purpose of enabling the electors to make a true choice in a free and democratic society. They may be regulated by other laws which seek to achieve an honest and fair election process. Thus, the power conferred by ss.10, 29, 31 and 51(xxxvi) and (xxxix) of the Constitution to make laws with respect to the federal electoral process may be used to prevent fraud, intimidation, corruption and misleading information in an election without infringing the rights conferred by ss.7 and 24.

This is where I don't understand it. Sections 7 and 24 are procedural stanzas on how the Senate and House conduct their business. They are not enunciations of 'rights' as Justice McHugh is claiming. This is an attempt to graft republican principles into a constitution which does not hold them. The implied 'freedom of speech' in responsible government is a judicial construct, not a constitutional one.

The Justice's argument may be valid that this is necessary for responsible and representative government to function effectively, but it is not republican.

Representative government and its functions are not rights. They are a form of social organisation that individuals have, supposedly, agreed to in order to maintain their affairs under civil order. Representative government is an emergent effect of individuals seeking civil order. It is not intrinsic to the individual.

Justice Anthony Mason tries to explain all the contradictions between responsible government, federation and the doctrine of constitutional implication. On implication he writes;

It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation.

However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.

Which is probably as succinct a description of the doctrine as can be found. One of the problems of this doctrine is that it makes the constitution unknowable and opaque to the citizenry by moving its interpretation into a body of judicial decisions rather than a simple constitutional document.

A republican principle is that the form of social organisation be easily and quickly knowable to any, and every, citizen through an easy to understand, and explicit constitution. Republican government is for the people and tries to remove the requirement for specialisation and extreme knowledge for the function, process and constitutional operations of government to be understood.

It is an extremely egalitarian form of constitutional order which attempts to fend off complexity and third order decision making. This is another republican basis for a just relationship between individual and government. Complexity of laws and second-order constitutionalism are a form of arbitrary government by elevating laws and practice beyond the understanding of the citizens.

It is the old saying, make enough laws and everyone becomes a criminal. This can be translated to constitutionalism as well; with the doctrine of constitutional implication contributing to that result.

The counter argument is that the judicial does not make laws, they only interpret the constitutionality of them, but this process invariably means that the legislative has their future room to legislate in, either restricted or expanded. It does not help that the Legislative branch often uses their powers to expand their own influence and use the judicial as a back-stop - effectively offloading the political repercussions to the judicature.

Mason continues;

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights

"The Constitution is built upon confidence in a
system of parliamentary Government with ministerial responsibility"

They refused to adopt a counterpart to the

Fourteenth Amendment to the Constitution of the United States. Sir Owen Dixon said Sir Owen Dixon, "Two Constitutions Compared";

"(they) were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them
the need of provisions directed to control of the legislature itself."

The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy

Mason is correct in quoting Owens on that issue, but Owens is disingenuous. Ballarat had seen the rise of Chartist Revolt, known as Eureka, in the 1850s. Civil unrest in Northern Queensland during the 1890s prompted Horace Tozer to pass legislation that enabled strikers to be shot on site. The military was also used for civil enforcement and strike breaking. In the 1880s Australian Republicans also came under executive and legislative tyranny during the Republican Riots in which Henry Parkes suspended freedom of speech.

The difference between the Australian and American constitutional drafters was that the Americans had been on the sharp end of executive and legislative arbitrary government from England, while the Australian drafters had been the ones wielding the stick over the prior fifty years.

Mason, despite continuing on with responsible government and the decision by the framers of the Constitution not to incorporate explicit individual rights - which he writes the court is bound to uphold - continues with the structural issue of representative government. And here Mason argues that freedom of communication is protected through the structural implication of the Constitution;

Indispensable to that accountability and that responsibility is freedom

of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to,

political action or decision.

Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.

and;

Freedom of communication in relation to public affairs and political

discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate

on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.

That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion

I believe that speech and communication needs to be constitutionally protected from arbitrary government. I do not like it being done in this manner, it should be done through a 'crack your ribs' explicit constitutional statement of absolute protection from executive, legislative and judicial encroachment on communication.

That Australia is having to protect communication in this manner is an example of the inefficiency in the constitutional monarchical form of organisation and the responsible government doctrine which informs it. Our current system is an invitation to spaghetti organisation, increasing the complexity of our constitutional system and removing government, its processes, and its constitutional basis further from quick and simple citizen's understanding.

This is another path for tyranny and arbitrary government. Republicanism protects against this eventuality.

cam