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.

History has a sine-like wave between the extremes of capital intensiveness and commodification. One of the best examples of this is warfare which was capital intensive with the Knights in shining armour before quickly becoming commoditised by gunpowder - which any riff raff could load and aim. The nation-state as an organisational technology proved well suited to the capital and state intensive period of the late 19th and early 20thC. However, now we are in a commoditisation swing and need to re-seek out decentralisation structures.

A great organisational technology is federalism. It strikes an excellent political balance between centralisation and decentralisation. Another benefit is that it places the central authority in permanent tension with the out-lying arms, and hopefully, through a well written constitution, that tension is maintained such that neither centralisation or decentralisation dominate absolutely.

Sadly that didn't happen in Australia and between Canberra, the federal political parties and the High Court - nationalism is now dominating the states such that decentralised autonomy is in sad shape. Other than the benefits of federalism offering an internal free-trade system, which was important to NSW who had tariffs leveraged against them by the protectionist states such as Victoria, South Australia, Western Australia and Queensland (also Tasmania - in fact NSW was the only free trade state), the national dominance did not bring the capital intensive benefits either.

During the late 19thC and mid 20thC warfare and the state got capital heavy. Blue water projection was first dominated by the Dreadnoughts and then super-carriers. All massive capital works to create and maintain. Only nation-states with their large wealthy populations and efficient (by history standards) tax collecting bureaucracies can afford that kind of thing.

Then we got the welfare state after the depression where governments decided that capital intensive methodology to provide public services. But in Australia most of this was done by the states. For instance education, health etc are the domain of the states. So basically the federal government in Australia centralised the power over policy and money collection but not the actual services.

This is exactly how John Gorton and Gough Whitlam visualised the federalist structure with the policy and receipts dominated by the feds and the administration and disbursement of receipts dominated by the states.

Unfortunately we are in a commoditisation cycle. Mainly because Deming's statistical process control [SPC] made the geographical location of a factory irrelevant, allowing companies to take advantage of decreasing wages without a loss of product quality, and the productivity gains from digitisation. Communications, production, bureaucracy, etc, etc have all been transformed by the microchip.

I was recently at the Udvar-Hazy Center looking at the Enola Gay from a raised platform when I said to myself, "It is so analog!". This is the aircraft which dropped the atomic bomb, yet its cockpit was populated by dial after dial. Not a HUD, CRT or LCD in sight (my car has a HUD). I would not have considered an analog engineering solution like that unusual fifteen years ago - today - I am shocked that people existed with backward technology like that!

I was interested to read Rod Beckstrom's take on federalism :

Q: You say that when our founding fathers sculpted our [USA] Constitution, they put the government in the "sweet spot," between centralized and decentralized. Are we still there?

RB: We've [USA] drifted strongly back toward centralization over time as a country, and of course we wobble back and forth a little bit. One of the biggest examples was after 9/11, when we took all the different police forces and intelligence forces and put them all under Homeland Security. That was a major centralization move, and typical: When a fairly centralized player gets attacked by a decentralized force, like al-Qaeda, the first reaction is to centralize further, and that's usually a strategic mistake.

When asked with what the prescription to the increasing centralisation is, Beckstrom replies:

Q: So how do we get back into the sweet spot?

RB: One way is to push responsibility back to the state governments. In some areas you can decentralize by outsourcing services further. One of the ultimate moves in terms of combating terrorism is to have the government use more Special Operations forces, which tend to be more decentralized, working in small teams that in general are given a high level of autonomy. . . . I gave a presentation at Stanford in 2004 to 50 CEOs from around the world. One CEO took it back to a head of state in a Middle Eastern country to the top levels of government. Based on it they decided to start their own local special operations in a selected city, and found it to be much more effective than their traditional, centralized counter-terrorism operation - at a very small fraction of the cost.

The people living in any community have the best sense of what is really going on in that community. They have local intelligence. The best information is at the edge of a network . . . where people are bringing what they want into the network and taking out what they want, without any centralized control.

It is interesting to see Beckstrom mentioning out-sourcing as a decentralised response though he later adds a caveat that checks and balances and monitoring are essential for that kind of decentralisation.

Our current period of commodification has meant that formerly capital intensive weapon systems are now within the reach of wealthy individuals and groups. For instance a satellite goes for under $20 million these days. Cheap enough for many people and organisations on the planet to afford.

A recent development has been super-yachts that have anti-submarine defence systems and air-to-air armaments. Yet recently a pirate ship fired on a Luxury Liner with an RPG (rocket propelled grenade) which caused consternation with media attention. Another commodity weapon system is the UAV. Rather than $100 million USD on a JSF, an Australian groups of aerospace engineers flew a cheap home-made UAV across the Atlantic, through rain squalls, and landed it on its target for less than a few kilograms in fuel. This is a very cheap, efficient and accurate warhead delivery system.

The final problem with centralisation and capital intensive endeavour is the structures that are required to support them. These becomes points of weakness or failure which can be attacked. John Robb calls this system disruption . A good example of a capital intensive system, operating under political regulation, that is vulnerable in this way is energy delivery .

Australia has under-gone a century of transformation such that modern federalism is not much like the federalism of Samuel Griffiths. There is an argument that the Griffith view of federalism was too restrictive on national autonomy, but over the last century the centralisation has been too great - such that it is a structural weakness in the modern commoditised environment. The states need to decentralise federalism by asserting their own autonomy and diversity.

Canberra likes to talk about the 'national interest'. We are at the point in the commodification cycle that the national interest includes a devolution to state autonomy for the purpose of political strength.

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