Uniform Law in Australia: An Alternative Approach

The Federalism Project
Issues Paper No. 6

INTRODUCTION

In the dying stages of the Western Australian Parliament of 1992, when Dr Carmen Lawrence was still serving as the nation's first female Premier, the appalling consequences of the WA Inc years were not the only pressures enveloping her.  In a little-publicised event around this time, her government, and indeed politicians across the spectrum in the West, were making history in another -- unwelcome -- way.

The Lawrence government was sponsoring a bill to regulate non-bank financial institutions, to bring Western Australia into line with other States in this field.  The Queensland Parliament had been the "host" legislature, and it was intended that all other jurisdictions would embody the Queensland legislation into their law.

So far, so good.  A sound, innovative dose of co-operative federalism was on the medicine spoon -- and it was being administered jointly and co-operatively by the States and Territories themselves, without the involvement of the Commonwealth.

But any feeling of self-satisfaction began quickly to disintegrate when the price of administering the medicine was realised.  In a sequence of events probably without precedent in Australia, the Parliament in Western Australia was being asked to swallow its dose without knowing the contents of the bottle.  In a quite literal sense, the Parliament was being asked to enact a law it had not seen.  Copies had not been made available to MPs because of the rushed circumstances surrounding the bill's debate.

Thus, at the end of those WA Inc days, when every local MP had claimed to have learnt from bitter experience the need for more and better scrutiny and accountability as part of their parliamentary responsibility, the Parliament was dealing with a bill to adopt the Queensland statute -- except that the Queensland statute was nowhere in sight.

The bill was nevertheless passed into law, an outraged and embarrassed Liberal-National Opposition complying with the Lawrence Government because of the threat that if any other building society crumbled without the new protective laws, the Opposition would have to bear the odium.

Thus it was that the Western Australian Parliament passed a much-needed, sensible co-operative national measure -- but only in the wake of solemn, and renewed, vows made by the MPs that never again must they deliver a desirable end (uniform legislation) by such a shameful means (a failure to sight what they were passing).

FINDING THE MIDDLE GROUND IN FEDERALISM

Politicians the world over, and since the birth of politics, have risen or fallen more often than not on their ability to strike a balance between fiercely-competing interests.

In a genuinely democratic community, extremists rarely win:  indeed, they will frequently be heard to bemoan the tendency of leaders to pander to the middle ground, contemptuously seeing those leaders as trying to have -- or perhaps in fact having -- a foot in both camps.

Australia is not much different.  In endless discussions on federalism, centralism and uniformity, Australia has, since the middle of the nineteenth century, sought to balance a variety of popular aspirations.  The result, with few exceptions, has been to establish the middle ground.

When the colonies were increasingly seen as inadequate to the task of dealing with inter-colonial tariffs and external threat, the move toward some other form of governance began.  That ended in the new century with the people's acceptance of neither extreme:  that is, colonial voters across Australia implicitly rejected the notion of remaining as six separate, competing or "independent" colonies.  At the same time, they endorsed the view of their political leaders that the creation of one, single, central government was not an option either.

Thus Australia emerged as a classic political compromise.  As a result of a series of referendums throughout the colonies in 1899 and 1900, the people initially created a central government to do those things best done from the centre and they re-fashioned the six former colonies into States to do those things best left to people away from the centre, or on-the-spot as it were.

For better or worse, Australia has bravely soldiered on since then, with the Commonwealth and the States often fighting like street urchins over the scope and "ownership" of political power in Australia.

Despite predictions from such luminaries as Alfred Deakin, the Commonwealth has not devoured the States (although both the rabid centralist and the hard-line States'-Righters may find that arguable).  Central power has grown enormously, yet in the face of a formidable array of enemies over the decades, the States may well ponder their achievement in merely surviving.  They are still here, and the indications are that they will still be even in a post-2001 Australian republic.

Certainly their detractors have been well-placed actually to do something to bring about their demise.  And yet, in the most recent generation, the federation has survived the onslaught of a professed and vigorous centralist like Gough Whitlam, the Boyer Lecture predictions of R.J.L. Hawke suggesting that the days of the States were numbered, and the eventual ambivalence of Paul Keating.

Many on the conservative side of politics would say that Liberal figures like Sir John Gorton and Malcolm Fraser were not far removed from their Labor counterparts in their antagonism -- perhaps it was only indifference -- toward the States.  Note, too, that a decade or so after his Boyer lectures, Mr Hawke sought so to ingratiate himself with the States, and other interests, that he sponsored a major pro-federalism package aimed at giving the States greater income-taxing powers.  This conversion, of road-to-Damascus dimensions, was to help create the opportunity for his would-be (and indeed eventual) successor, Mr Keating, an unashamed centralist, to help bring him down.

Once ensconced in the Lodge, Mr Keating began his historic sprint toward the Republic, and was scarcely out of the starter's blocks when he proclaimed, in April 1994, that the States would survive into the future.  He went on to say that if Australia did not already have them, the States would have to be invented anyway!

It was not surprising, however, that Mr Keating, a man who prided himself on reading moods and grasping new intellectual concepts, had himself been through something of a learning curve.  The notion that Australia's federation was somehow an outdated concept in a modem, globalised world could not be further from the truth.  In a recent paper, a leading Canadian academic, Professor Thomas J. Courchene, was positively glowing in his remarks about parts of the Australian version, even in the context of modern federated Europe, when he wrote that

Europe 1992 and the Maastricht Treaty do pose challenges to federal systems in terms of replicating effective and efficient internal economic units.  Setting aside the Federal Republic of Germany, since it is part of the European Union, no federal system can compare with Australia in terms of responding creatively to the economic-union challenges. ⁽¹⁾

Perhaps it is a combination of the dispassionate views of such academics, together with the idiosyncrasies of a variety of Australian political leaders from across the political spectrum which, far from threatening the federation, have helped sustain, even nurture, it and then guarantee its survival.  Underpinning both parts of this combination is popular democratic sentiment in Australia;  perhaps the average Australian still exemplifies the liberal Deakin's own observation that

a federal constitution is the last and final product of political intellect and constructive ingenuity;  it represents the highest development of the possibilities of self-government among peoples scattered over a large area. ⁽²⁾

So it is that, however one might describe the health or nature of the Australian federation, it does seem to have that paint-like capacity to "keep on keeping on".

Financial relations are frequently quoted as being the key to unlocking the problems of the Australian federation.  I am now not so sure.  From 1980 onwards, I have seen -- and this would run counter to popular belief -- a gradual increase in the amount of Western Australia's consolidated revenue fund being raised from State sources.  Thus, in the most recent budget, the State has reached the point where it now raises almost 60 per cent of its own revenue (58.1 per cent, to be precise).

To those who argue that, yes, that increased financial independence has come at the cost of imposing an increasing range of irritating, odious, inefficient and regressive taxes (such as, in Western Australia, the Financial Institutions Duty, since the early 1980s, or the increased State fuel levy), the response might be that taxpayers rarely see any tax measure as anything other than repugnant or bothersome.

John Edwards, of the Macquarie Bank and formerly a Paul Keating staffer, tends to bear out some of these views.  He told a federalism conference in 1994 that debate concentrated perhaps on the wrong issues in Commonwealth-State relations:

We focus on things which are unlikely to change and which in any case may either be working reasonably well or not be as important as sometimes believed.  We neglect to assess what has happened over the last five years and how the game has changed.  Until recently we have also neglected some of the much more interesting issues in Commonwealth-State relations, which are I think mostly about how both the Commonwealth and the States are being affected by external ideas and influences. ⁽³⁾

Edwards also expressed the view that coincides with my own:  that the States, without waiting on Canberra to give them a new growth tax (something like waiting for the phantom train which is never in prospect), should explore a possible increase in their own tax base.  He claims that

There are a number of taxing powers which States already have and don't use.  These include death duties and taxes on services.  Following the High Court decision they may have more room on retail turnover taxes.  They have always had the option of State income taxes on top of federal income tax. ... ⁽⁴⁾

Edwards is, I suggest, wrong on the State income tax proposition.  It would not just be a question of political courage for the States to impose an income tax over and above the Commonwealth's:  it would be one of political lunacy.  No-one can be in any doubt that Australia already milks the pay-as-you-earn taxpayer to the limit and it is idle to suggest that the taxpayer will absorb higher rates.  In these circumstances, it is simply not an argument to say that the States lack the courage to impose their own income tax.

But that one issue aside, the Liberal Party's own Commonwealth-State relations policy in Western Australia, endorsed in April 1992 (a document prepared for the 1993 Western Australian election), provides at least part of the answer.  In that document, it was stated that

Hand-in-hand with the principle of autonomy ought to be the responsibility -- the odium -- of raising one's own taxation revenues. ... The real challenge of the 1990s therefore will be ... the States being confronted with the need to accept not only a new tax base but the responsibility/odium that will go with that. ⁽⁵⁾

All of this is meant to focus attention on a fundamental political reality:  that the Australian people, ninety-five years into their experiment with federation, are quite disinclined to hurry off in any new constitutional directions.  Just like their great-grandparents in the late 1890s, they want neither a centralised, unificationist system, nor anything remotely approaching secession.

Evidence will follow to show that Australians are relaxed with a federation, and seem to believe that it works ("... as much", they might sigh to themselves, "as anything in this country run by politicians seems to work!").  They perhaps comfort themselves with the knowledge that while Federal and State politicians argue about power it must mean that things are all right -- that no one person or political jurisdiction has it all.  While people are convinced that the country is over-governed, and certain that it has too many politicians, they have an innate sense that, despite all this, our place in the sun is a fair bit warmer than most places on earth.

Their views are shared by many leading academics.  But few among that category are as unequivocal as Tom Courchene (quoted earlier), visitor at the Federalism Research Centre at the Australian National University and professor of Queen's University in Canada, in expressing the view that

... a federal system is in my view the only political structure open to Australia that is capable of accommodating the difficult but inevitable policy challenges coming from the global economy. ⁽⁶⁾

The real value of Professor Courchene's observation lies not just in his experience with the Australian federation and the Canadian confederation, but also in that he offers his remarks in the context of the global economy.  He is thus not merely defending a system against a background of what has already happened, but within a political and economic panorama that stretches before him into the future.

Across the globe in the twentieth century, federations have risen and then fallen, so that now Australia's is one of the longest-surviving federal structures.  Like a tube of toothpaste which remains a tube despite prodding and squeezing, the Australian model has remained a federation, but with its shape changing, depending on where pressure is applied.  A number of new pressure points have emerged in our 95 years.

The superior financial position of the Commonwealth has materially changed the shape of the tube.  So too has the High Court, together with the expansive use of, and reliance on, the External Affairs power of the Constitution, and mundane but powerful weapons like tied Commonwealth grants.  And yet, for all this, we remain a federation where a Prime Minister is careful to avoid the chidings of a powerful or well-placed Premier, and where, frequently, federal issues can affect State polls and vice versa.

THE NEW PRESSURE POINT:  THE QUEST FOR UNIFORMITY

But there is now ample evidence that a new pressure point has emerged, one which will profoundly change the shape of the tube of toothpaste.  Unlike the other pressure points mentioned earlier, however, this one -- uniformity of law -- is within the direct capacity of the States to use to their advantage, provided that they have the political imagination and the will to do so.

As interstate mobility has increased in the prosperous post-war years, so too has a realisation that there are irregularities needing attention.  Ask the family transferred from Sydney to Perth, and they'll invariably express their anger or annoyance at any differences in school-starting or school-finishing ages, qualifications recognised in one State which go unrecognised in another, or some other irritant needing to be fixed by "the politicians".

Similarly, on the wider business front, it is frequently argued that uniform national regulation is needed because it reduces compliance costs for business operating in more than one State.  It is a stance supported, with some important qualifications, by Nicky Cusworth, Chief Economist at the Western Australian Chamber of Commerce and Industry.  There is not much point, she argues, in introducing a national regulatory framework if it becomes "... more onerous than the State-based framework it replaces". ⁽⁷⁾

This "new" push for uniform national legislation is in fact not that at all:  rather, it is well-established in the Australian political landscape.  As Professor Cheryl Saunders has pointed out, even before federation,

... despite the existence of six different legal systems in Australia, there was a measure of uniformity in the law.  The British colonists brought with them the English common law and statutes.  In the early days of the Australian colonies, much legislation was prepared in the Colonial Office in London, and the same provisions were often used for several colonies ... self-government made little difference ... though statutes were no longer made in England, they were often copied verbatim from English legislation ... ⁽⁸⁾

This point is not just incidental to the argument about Australia in the 1990s heading more fully down the path of uniform national legislation.  Parliamentarians, particularly those in the State sphere, may take considerable heart from the historical fact that the trend has always been there, and that it is now being accelerated.  The more creative of the State MPS, and those with a genuine commitment to federalism, will -- or at least should -- seek to guide and mould developments to achieve better federalist ends.

Thus this "old-new" solution of uniform national legislation invites us to ask how the nation might retain a workable federation in the face of strong pressures to harmonise or make uniform much of the law of the States and the Commonwealth.

Simply stated, and notwithstanding the apparent desire of the people (a matter to be dealt with shortly), one might advance the earlier question to a new plane:  is there any purpose in retaining a federation if there is an increasingly strong case for more and more uniform national laws?

Having asked the question, this paper makes out an argument for accepting, on a case-by-case basis, the rationale for uniform legislation;  but argues against the need for that uniformity to be imposed from the centre, or for it to be applied in every case sought.  By extension it argues the case for a whole new political landscape in which the States and Territories begin to create their own vision for the future shape of the federation -- something they have been unaccountably slow in doing in its first 100 years.

Here there is fertile ground to be ploughed for a whole new debate:  uniformity does not -- and should not -- have to mean centralism.  This is not only my view, and that of the Western Australian Standing Committee on Uniform Legislation, which has canvassed the issue;  it is also held by Professor Courchene who, with experience in Canada and Australia behind him, spoke of the recently-concluded Mutual Recognition Agreement in Australia, and observed that

While these ... agreements may be the result of joint Commonwealth-State action, they may also be initiated by the States themselves.  This speaks to an important, but all-too-often neglected, feature of federal systems, namely for programs or policies to be national they need not be central.⁽⁹⁾

Elsewhere in his paper, the same academic underlines the point by observing that

... in pursuing a unified economic space, there are some areas where uniformity across the States is important but there are other areas where harmonisation, rather than uniformity is the better approach. ⁽¹⁰⁾

It is incontestable that the Australian electorate is looking for the best of both worlds.  Perhaps it has been ever thus.  And why not?  Time and again the voters have ruled, generally by convincing majorities, that they do want the States, and they don't want excessive centralism.  Beyond those two simple expressions, they are content to let the politicians slug the matter out in their own way.

So what is the evidence for these assertions?  The primary testimony is to be found in the outcome of referendums on changes to the Constitution.  Voters have mostly -- though not always -- refused further to empower the Commonwealth government or parliament.  For those who discount the referendum failures as the basic or unthinking conservatism of the Australian people, two recent examples are worth citing.

First, the 1988 referendum questions proposed by Prime Minister Hawke's Government began their life as "motherhood" personified.  Early polling by quality organisations gave a clear indication of overwhelming public support.  But as debate began to develop and mature across the nation, even some of the more mundane -- or high-sounding -- of the proposals going to the people began to emerge in somewhat different form.

After all, the people were being offered a deal they could hardly refuse.  The first of the proposals was to limit MPs to a four-year term, the second sought to ensure "fair and democratic" elections, the third aimed to "recognise" local government in the Constitution, and the fourth sought to entrench the right of trial by jury and to extend freedom of religion.  What could be fairer than all that?

In the end, however, the people were not convinced;  and not just the people of the outlying, or so-called conservative, States.  All the referendum proposals were defeated in roughly a two-to-one rejection.  The biggest defeat came in what might have been reckoned to be the most "respectable" and compelling of the proposals:  the right to trial by jury and freedom of religion proposal was soundly thrashed, perhaps confirming the view that most people thought that Australia already maintained those principles anyway.

Second, reputable pollsters like Irving Saulwick have, as recently as 1994, analysed attitudes towards federalism, confirming electoral experience and anecdotal evidence.  For instance, Saulwick found, upon asking 1,000 Australians whether the Federal Government had "too much power, about the right amount ... or too little power", that there was a marked difference between Victorian responses and those in the outlying States of Queensland, South Australia, Western Australia and Tasmania.  Some 36 per cent of Victorians polled felt that the Federal government had too much power, while the figure soared to 54 per cent in these outlying States. ⁽¹¹⁾

On all this evidence, and especially the frequency with which lofty-sounding referendum questions are rejected, it is insulting to attribute defeats to voter ignorance or apathy.  The only conclusion that can reasonably be drawn from referendum outcomes is that the people have no desire to give any government any extra powers over their lives.  The Australia Card and Bill of Rights debates of the 1980s are other examples of the people rising up against even the most reasonable-sounding "nanny-state" proposition.

In this, Australians are perhaps not much different from their American counterparts.  As W.J. Byrt and Frank Crean observed in 1972,

The government of the United States may have been conceived in revolution and dedicated to democracy.  Conditions at the time of its birth were, however, such as to make the founding fathers distrust existing government -- of England, of European nations and of their own thirteen colonies -- as arbitrary and bad.

Government was an unfortunate necessity.  However, if it must exist, its powers should be limited and its prime duty should be to safeguard the rights of the individual ... ⁽¹²⁾

In reading that observation about the culture of American politics by two eminent Australians (one a practising politician at the time), one is inclined to think that there may be a lot in common between the ordinary American and the average Australian.  The conclusion about the citizens of both countries might be that they are both far more politically-attuned than many politicians or academics tend to acknowledge.

If ordinary electors then have some sort of innate suspicion of governments seeking extra powers, their leaders have also been inclined similarly to make observations about the relative value of the increased uniformity demanded by some.  For example, two prominent Australians, seemingly coming from different vantage points and certainly from different geographic regions of the nation, have in recent times answered the question of uniformity with some "sameness" of thinking.

The former Solicitor-General of Western Australia, and now Supreme Court judge, Justice Kevin Parker, QC, spoke before his elevation to the bench with commendable plainness when he stated that

For most ... subjects ... the need for or the advantages of national uniformity are usually exaggerated, and there is not usually much real justification for the monotonously frequent calls heard in recent years for "uniform national legislation" about all types of subjects. ⁽¹³⁾

On the other side of the nation, Malcolm Fraser, not long before he became Prime Minister in 1975, but after a considerable stint as a senior Federal Minister, made the observation that

Those who live in Canberra, those who frequent Canberra as politicians, often fail to understand that what they believe to be a national objective is sometimes far removed from the average person's idea of nationalism or a national cause. ⁽¹⁴⁾

Both observations are important, coming as they do from one who later served in the Prime Ministership and who frequently clashed with State leaders in this very area of Commonwealth-State relations, and one who advised successive Western Australian Governments with distinction and impartiality as Solicitor-General.  The observations are important because they jointly, but independently, challenge the notion that solutions dressed up as "national" are necessarily that at all.

Importantly, in the 1990s, it is not just the politicians or the jurists who have entered the fray over the relative merits of centralism versus federalism, and the place which uniformity or harmony of law have within that framework.  One of the peak business councils in the nation which played a prominent role in leading public debate in the 1980s on microeconomic reform was the Chamber of Commerce and Industry in Western Australia.

It is relevant to observe that one of the Chamber's then senior economists, Colin Barnett, is now a senior Minister in the Western Australian Government, and personally driving some of the important reformist vehicles in that State.  One of his successors as Chief Economist at the Chamber, Nicky Cusworth, in an independent assessment of the Hilmer Report on National Competition Policy, appears to challenge some of the conventional wisdom in Australia today.

In a recent paper, Ms Cusworth discusses the outcome of a prohibition on State Governments discriminating in their purchasing policies against goods produced elsewhere in Australia and New Zealand.  As she sees it, one outcome of the intergovernmental agreement involved in striking the deal is that

... it fails to provide one of the main benefits claimed of uniform regulation -- administrative simplicity and reduced compliance costs through the application of identical rules everywhere. ⁽¹⁵⁾

Ms Cusworth's observations, both in her paper and in evidence before the only Australian parliamentary committee set up to examine uniform legislation (the Western Australian Standing Committee on Uniform Legislation referred to earlier) in some ways can be seen as almost a shattering denial of faith.  After all, everyone knows the arguments in favour of uniformity, given what we now acknowledge about the global village, and observing what we do, for example, over Britain's anguish in its being pushed toward a united Europe.

And yet Ms Cusworth, not known for any particular parochial tendencies, and with an impeccable record as an independent economist, goes on the record as saying that

Indeed, uniform rules can impede competition.  For instance, CCI has argued that the process of setting uniform wages under the award system removes competitive pressures from both employers and employees. ⁽¹⁶⁾

She reminds readers of a 1993 CCI position paper (from a body which led public debate on deregulation when many of its members were distinctly uncomfortable about that) which maintained that industry-wide terms and conditions actually remove a major motivation for improving productivity.

With most informed opinion in Australia immediately and unquestioningly accepting Hilmer's basic premise -- that his recommendations will promote and assure competition -- Ms Cusworth is not so sure, and this refusal on her part to follow the crowd is refreshing.  She raises such questions as "... whether uniformity in the regulatory framework is likely to promote or stifle competition ..." ⁽¹⁷⁾  She expands this sceptical view by saying that

Competitive federalism suggests that a major stimulus to economic efficiency might derive from the differences between governments' taxation and regulatory framework. ... A growing body of literature suggests that there may be significant potential benefits, as well as disadvantages, from competition between governments. ⁽¹⁸⁾

This is not a lone view.  Professor Courchene is to the forefront of this school of thinking.  He sees merit in competition between States because this allows what he calls "winning strategies" to be copied by other States.  This is, if one likes, the economic strain of the parallel argument that sees merit in one State or province setting the pace on social reform, while other States or provinces sit back and watch for any unintended consequences.  They then legislate with the best, and discard the rest.

A leading Australian policy analyst, Dr Michael Nahan, is another individual whose public pronouncements -- not always welcomed by politicians at either end of the spectrum -- have helped create a climate of rigorous public debate in that State.  Dr Nahan argues that

... the main driving force for economic reform at the State level is, and will remain, competition from other States.  The fact that electricity prices, taxes, debt and the cost of government services are lower in Queensland, and that these lower costs have attracted people, investment and jobs from other States, has been the main impetus for reform in all the States ... ⁽¹⁹⁾

THE PUSH FOR UNIFORMITY

That there is increased pressure for uniform national laws is undoubted.  In recent times in Australia, that call has been applied to the areas of child abuse, industrial relations, environmental controls, police forensic procedures and a variety of issues arising out of the Hilmer Report on competition policy.

This increased pressure, and the sheer volume of laws requiring joint Commonwealth-State/Territory action, and certain dangers that existing methods for achieving uniformity pose for the Parliaments (and thus the people) have prompted the Western Australian Parliament to create what is still the nation's only "purpose-built" parliamentary scrutiny mechanism for uniform legislation and intergovernmental agreements.

This committee grew out of one of the less-publicised but deeply-disturbing parliamentary "scandals", a scandal to which all MPs in Western Australia were party, and whose history was briefly traced in the opening paragraphs of this paper.  A further word of explanation is needed.

To meet a deadline (beyond which Western Australia would not have been part of the national scheme to bring about new laws for non-bank financial institutions) the Parliament passed the necessary legislation without having sighted it.  True, the Liberals, Nationals and Independents objected and protested, but in the end they acceded to the government's wish to pass the bill for fear that a refusal would be laid at their feet in the event of the collapse of another finance house.  (All this was not entirely academic to State MPs who had all seen at close hand, in the late 1980s, the spectacular collapse of Rothwells merchant bank, the fall of the once-wealthy Teachers' Credit Society, and the aftermath of other financial scandals.)  Fortunately, Western Australia maintained some vestiges of a sense of what was right and wrong;  and all MPs vowed that never again should the State see the spectacle of a bill's being passed sight unseen.

(It was not without some disturbing irony that barely three years later, the same Parliament should find itself on the verge of passing a Mutual Recognition Bill, by which Western Australia would enter a national all-State recognition scheme:  the one problem was that the enabling bill to give effect to the entry into the national scheme, sponsored on this occasion by the Court Coalition Government, came to the Parliament without the Commonwealth Act which it was adopting.  The ghost of 1992 had still not been laid to rest!

The Commonwealth Act was not sighted by the Western Australian MPs -- and the only one of 57 Legislative Assembly members who picked up that vital point was the Deputy Chairman of the Standing Committee on Uniform Legislation, Dr Elizabeth Constable, a member of the original inquiry set up to ensure that there would never be a repeat of the 1992 scandal.  The upshot was that the Court Government accepted an amendment which properly attached the Federal Act to the State legislation.)

That earlier 1992 failure to sight a bill it was prepared to pass in fact led the Parliament to the formation of a Select Committee of Inquiry to examine ways in which bills embodying uniform legislation could be held up to scrutiny before such legislation was ratified by Parliament.  That Select Committee brought down a significant report which, among other things, recommended that a permanent, on-going mechanism be set up to achieve proper scrutiny.  And so it was that the Standing Committee on Uniform Legislation was established, the first of its kind in Australia.

THE WESTERN AUSTRALIAN CREATION

This Standing Committee began its life in August 1993, on the simple resolution of the Legislative Assembly, with the primary task of reporting to the Parliament on

... proposed or current intergovernmental agreements and uniform legislative schemes involving the Commonwealth, States and Territories, or any combination of States and Territories without the participation of the Commonwealth. ⁽²⁰⁾

In the Chairman's foreword to the first Report, tabled in March 1994, considerable emphasis was placed on the growth of executive power and the diminution of the role of parliaments not only in Australia, but elsewhere.  The Committee comprised an Independent, Dr Constable, as Deputy Chairman, two Liberals, Mr Robert Bloffwitch and Mr Rob Johnson, and one Labor MP, Mr Fred Riebeling.  It unanimously recommended changes to the Standing Orders of the Western Australian Legislative Assembly to require Ministers to report to Parliament on the form and content of intergovernmental agreements.

This first Report called for the creation of a central Australian register of existing and proposed intergovernmental agreements, and for the Premier of Western Australia to bring the whole issue before a meeting of the Council of Australian Governments (COAG).

In the months ahead, the Standing Committee was to work (like most parliamentary committees) with remarkable bipartisanship (unlike parliamentary chambers), taking every opportunity to point out that while Executive government (federal or State) was ever-eager to diminish real parliamentary scrutiny, MPs of all persuasions were also part of the problem by their own general complaisance in these matters.

In its early months, the Western Australian Committee, which visited many Australian parliaments, was in all likelihood seen -- quite inaccurately -- as a Western Australian invention designed to stave off Eastern States or Canberra interference in its affairs.  Slowly but surely, however, the Committee was able to persuade other Parliaments, including members and officers of the Senate, that a real problem did exist in the serious scrutinising of legislation introduced by Cabinets with the demand that it be passed without amendment because of its uniform nature.

The Committee probably passed something of a credibility test in this respect in its Report on the implications of the State's joining the national Mutual Recognition Scheme, which had been signed by Australian heads of government in May 1992.  Its report was widely expected to support the Court Government's reticence over Mutual Recognition:  instead, the five-member Committee unanimously recommended Western Australia's entry into the scheme, even suggesting that if and when New Zealand opted to join the scheme it might do so under circumstances more favourable to jurisdictions like Western Australia. ⁽²¹⁾

By July 1995, the principles of prior parliamentary scrutiny of uniform legislation and intergovernmental agreements had resulted in the Western Australians presenting a paper to a Darwin conference representing all Australian legislatures, a subsequent discussion paper canvassing uniform scrutiny principles being tabled in all Parliaments, and a special meeting in Perth scheduled for May 1996.  The idea of bringing parliaments into the scrutiny picture, before federal and State Ministers locked themselves irrevocably into an agreement, had come a long way in four short years.

Against that background, it is worth examining now the general issue of uniformity.  In doing so, one is entitled to ask what the magic is in making all laws and regulations the same;  and what superiority there is in this notion of sameness or conformity, especially in a world which extols the virtue of diversity or "differentness".

Let us turn, therefore, to the essential issues that need to be addressed:

1. Where does the pressure for uniformity in Australian law originate?
2. Just how legitimate is that pressure?
3. Are there practical alternatives to uniformity?
4. When is uniformity justified?
5. What is best practice in other comparable countries?

Having examined those elements, it might then be reasonable to conclude on the "people equation";  to ask, that is, whether these answers merely serve entrenched interests instead of the people.

WHERE DOES THE PRESSURE FOR UNIFORMITY ORIGINATE?

It is a demonstrable fact that much of the pressure for uniformity in all its guises in Australia comes from a relatively small number of national sources.  These include the federal bureaucracy, which has such an influence in forums such as the Council of Australian Governments (COAG -- the old Premiers' Conferences), federal politicians and national peak councils.  Less frequently is such a call heard from an individual State or a State Minister, but it is not unusual.

A Commonwealth decision to proceed with unilateral uniform action can depend on a variety of factors, and this in turn depends on where the pressure comes from, from whom it comes and, importantly, the nature of the issue under discussion.  Two recent examples in the broad field of social legislation are a stark reminder of how the Commonwealth reacts quite differently to similar situations, depending on the perceived political pressures of the day.

The first issue was the Tasmanian Government's reluctance to alter its law on homosexual activities.  The issue was thought to be sufficiently a vote-winner for the then Federal Government to take the stance that Tasmania's laws were wrong, outdated and in need of change.

The Commonwealth argument went along the lines that unless change was made in the Tasmanian Parliament, it would legislate to override the State, using "human rights" powers derived from the External Affairs clause of the Constitution.  Once done, that would have the effect of overriding any other State's homosexual legislation which conflicted with the Commonwealth's.

Thus it was that the Commonwealth could apparently enjoy not only the discomfort of the Tasmanian MPs, who resented the federal intrusion into an area of traditional State responsibility (and who apparently enjoyed the support of the Tasmanian electorate on the matter), but also the discomfort of the federal Liberal-National coalition, some of whose members believed that even if change was needed, the change had to be made by Tasmania and not Canberra.  The outcome was a law passed in Canberra which effectively set aside the Tasmanian statute.  Alleged anomalies existing in other Australian States in the matter have, conveniently, been ignored by the Federal Government.

Contrast that push for achieving and imposing uniformity to that which took place on the second issue -- that of euthanasia.  In February 1995, a matter of months after the Tasmanian homosexual law reform controversy, the Northern Territory's then Chief Minister decided to introduce a bill into his Parliament to legalise a form of euthanasia.

There was not the slightest hint that the Federal Government would or should intervene.  And why this difference in response by the Commonwealth?  One is left with the distinct impression that euthanasia was seen by the Commonwealth as still an unknown quantity politically;  a minefield, to put it bluntly.  The Federal government was thus happy to let this matter pass through to the keeper, with no thought that intervention was of any political advantage to it at all.

Certainly, and without meaning to do so, the Commonwealth, in the case of the euthanasia bill, was reinforcing the long-held views of many federalists:  that the real value of a federation is in allowing one constituent part to experiment ahead of the rest.  On the other hand, a controversial move imposed by a single, central government might well backfire and have detrimental effects on all people.

Commonwealth MPs and bureaucrats will often argue the case for greater uniformity in most things.  The challenge to the States is to offer the counter-argument that uniformity does not have to mean central control.  In this, the States might take a lead from one of "their own", Dr Brian Head, the former chief of the Queensland Cabinet Office, who has conceded that "... the machinery for intergovernmental negotiations needs to be consolidated and enhanced, with strong incentives in place for co-operation rather than coercion". ⁽²²⁾

In arguments not unlike some of those advocated by the Western Australian Standing Committee, Dr Head goes on to note:

The Council of Australian Governments should be the ongoing forum for debate and decision on major strategic issues, including microeconomic reform and public sector reforms.  Ministerial councils need to play their part in resolving problems of efficiency and effectiveness in each policy area. ⁽²³⁾

To this, the Western Australian Committee might only wish to add that the role of those Ministerial Councils should never pre-empt that of the Parliaments of the nation.  That committee has recommended a number of ways to ensure that Ministerial Council decisions are effectively scrutinised by the parliamentary process, as distinct from merely having the appearance of such scrutiny and in such a way as to overcome fears by executives that their right to govern may be put at risk.

In its fourth Report, tabled on 16 June 1994, the Standing Committee recommended, inter alia, that the Western Australian Government should agree, by way of a Parliamentary Resolution, not to support at Ministerial Council meetings proposals for uniform schemes until they are properly scrutinised by the Standing Committee.

Perhaps the most potent of all the recommendations of the Standing Committee was the suggestion contained in its original Report, tabled on 24 March 1994.  In this document, it was unanimously supported, across all party lines, that the rules (or Standing Orders) of the House be amended to ensure that a bill giving effect to uniform legislation be halted before the second-reading vote until certain information be provided to the House.  Sadly, this effort to break some of the executive's stranglehold on parliament has never been activated, despite a number of attempts to win government support.  Notwithstanding these set-backs, the Western Australian Committee has continued a battle which is important to each of Australia's nine Parliaments.  As discussed earlier, the set of initiatives presented at the July 1995 conference in Darwin was largely influenced by the Western Australian Committee, and seen as valid by the rest of the Australian parliamentary scene.

THE LEGITIMACY OF PRESSURE FOR UNIFORMITY

It may come as a surprise to many to learn that the history of the push for uniformity of law in Australia is no recent phenomenon.  We have already cited Professor Saunders' observation on the operations of the Colonies prior to federation. ⁽²⁴⁾  In the twentieth century, the push for uniformity in Australia was a stop-start affair.  One major example occurred in 1937, when a conference of federal and State ministers was called to discuss the fall-out of a High Court decision on air traffic regulation.  The nub was that

The chosen solution was a recommendation by each Premier to their Parliaments to enact uniform State acts adopting the Commonwealth air navigation regulations as State law.  This co-operation was seen as novel;  the need for future co-operation was not recognised. ⁽²⁵⁾

That then says something about legitimacy:  that is, when six warring Premiers agree to do something, the case for uniformity has been well and truly made out.  In the 1990s, a similar case was made out for the States to enact uniform non-bank financial institution laws.  The result again was acceptance of that particular need, and subsequent action on the part of all State and Territory Parliaments to meet a legitimate "national" aim -- a national aim met by the States themselves putting their laws into harmony.  The Commonwealth was not, and did not need to be, involved.

These are not isolated examples found in some desperate search to validate a pro-State argument.  In virtually every week of every year, federal and State Ministers of the Crown can be found meeting in some capital city to hammer out yet another Ministerial Council agreement for uniformity or harmony.

Indeed, so tentacle-like and cumbersome have these councils become that few people have an appreciation of their extent and nature.  Seldom set up by statute and operating mostly behind closed doors, these councils operate informally, taking decisions which are not legally binding on member-Ministers, but which now reach out into almost every conceivable field of public administration -- including the environment, education, health, trade training, police, forestry, sport, tourism and gaming, to name but a few.

In the opening paragraph of its third Report in 1994, the Western Australian Standing Committee remarked on the urgent need for a comprehensive parliamentary register to monitor the existence and development of uniform legislation.

Given the capacity of Ministerial Councils virtually to commit governments and parliaments to new uniform legislation schemes, or schemes involving intergovernmental agreements, it is disturbing that no one has a real understanding of the reach of these agreements.  But to remain ignorant about the extent of these instruments is to leave us in a poor position to assess their overall impact on the federation.  A significant, albeit tentative, blow for parliamentary scrutiny was struck when, in the early 1990s, the Council of Australian Governments agreed to reduce -- from 45 to 21 -- the number of Ministerial Councils.

Once the work of these councils is exposed, scrutinised and reported (to the Parliaments and thus the media and the public), the real task can then begin:  that of fully assessing just where the pressure for uniformity originates, and the legitimacy of the pressure.  It is not unreasonable to predict that, in at least some instances, the case for uniformity might be shown up to be very dubious indeed, perhaps being driven less by valid national considerations than by partisan, bureaucratic or narrow sectional interests.

In one respect, we can welcome the fact that the nation does so much of its business via the Ministerial Councils, which at least have input from both the Commonwealth and the States (including Territories).  In these circumstances, the States do have knowledge of such proposed uniform schemes, knowledge bringing with it the capacity to blow the whistle publicly on a scheme if a critic has a mind to do so.

The operation of the "checks and balances" in that way seems eminently preferable to a single, centralised scheme which might otherwise exist in Australia, where the capacity to monitor what government is up to (even if only for the purpose of blowing a whistle) would be considerably disabled.  Thus it is that Australia is always better served by Premiers and Prime Ministers (or their ministerial counterparts) publicly disagreeing over an intended course of action, than a Prime Minister alone calling the shots, and conveniently avoiding any such public glare.

ARE THERE ALTERNATIVES TO UNIFORMITY?

The last chance to influence public policy in this area was in 1992.  In that year, the Commonwealth-State relations policy document was prepared for the Western Australian Liberal Party.  The policy was formally adopted by the party in April 1992, with the recommendation that it be issued to Ministers of an incoming coalition government as their "bible" for dealing with other governments.

In the document, subtitled "A Blueprint for WA for the 21st Century", the policy endorsed the principles of avoiding duplication of functions in Commonwealth and State spheres, achieving harmonious and responsible divisions of governmental power, reducing the continuous push for further Commonwealth control, and ending the abuse of the External Affairs power for domestic purposes.

The document responded to the oft-repeated Commonwealth view that the States should rein in their expenditures.  It noted that "Commonwealth spending in real terms since the Hawke Government took office has increased by 32% while State spending over the same period increased 10%". ⁽²⁶⁾

The policy, in dealing with the cry for increased Commonwealth involvement in a variety of policy areas, acknowledged that, in one case, national employers had thrown their weight behind a call for a national (school) examination system.  However, the policy (which agrees that such issues need to be addressed) argued for "... uniformity, where it is desirable, [to] be achieved by the States agreeing to a proposal, rather than by the Commonwealth imposing a solution." ⁽²⁷⁾

The policy sought to pre-empt its critics by acknowledging that a State or States could "hold out", and refuse to enter an agreement with a majority of other States.  How then would a desirable national objective be achieved in the light of this sort of individual State response?

The answer given by the 1992 policy document stands today:  that in the ultimate the people in that State or those States would pass judgment on the correctness of their government's decision.  This is what is meant by an earlier reference to the "people equation".  The fact is that people may well eject from office their State Government because it refused to join a desirable uniform national scheme on, say, the school-leaving age.  On the other hand, the people might well retain that government for its decision if they believed that that was the best thing to do.  Is not, therefore, democracy better served by the people of one State standing out than having a decision with which they disagree imposed on them?

A similar scenario began building up as recently as March 1996, when the Carr Government in New South Wales raised the spectre of re-introducing a preference-to-unionists clause in that State's industrial laws.  It brought the immediate response from the new Federal Minister for Industrial Relations, Peter Reith, that the Howard Government might consider overriding the State measure.  For my part, I wonder whether it occurred to Reith that if the proposal was all that repugnant, it might be allowed to be introduced, thus allowing the Carr Government eventually to bear the odium.

An alternative to uniform law imposed from the centre is the model produced by the former Fraser Government Minister, Ian Macphee, for a two-tier system of government for Australia.  He outlines the way of achieving this as amending the Australian Constitution so as

... to abolish the federal structure and replace it with a two-tier arrangement providing for a strong central government and approximately 20-25 regional governments. ⁽²⁸⁾

So far, so good.  But Macphee, obviously keen to dispel any notion of up to 25 more groups of politicians and public servants, seeks to reassure his audience by stating that these regional governments "... would not have parliaments or large bureaucracies.  They should be elected every four years simultaneously with the central Parliament." ⁽²⁹⁾

The implications of this scheme in a democratic society are appalling.  Macphee advocates up to 25 extra regional governments which would not have parliaments.  One is then entitled to ask:  to whom are the 25 governments responsible if not the people?  An even more fundamental question arises:  what would be the purpose of electing regional governments in the first place?  The notion of having government without parliament may have some superficial attraction but is a leap back to past centuries when kings ruled as despots and tyrants without reference to, or restraint by, anyone or anything.

Macphee bases his advocacy on nothing more than feed-back from the talk-back radio he provoked when he presented a paper to Griffith University in 1993.  Looking back on that, he was convinced that "... people wanted strong local government at the expense of the states."  He produced no statistics, or poll outcomes, to back his case.

Perhaps the weakest part of the Macphee argument was that he fell into the trap that "uniformity" means "sameness".  In singing the praises of 25 regional governments in Australia, Macphee quotes a leading German academic, Uwe Leonardy, as having presented a number of principles for the determining of regions:

Most importantly, the stability of the nation as a whole is largely dependent on the regions being closely comparable in size, institutional structure, administrative capacity, economic viability and financial strength. ⁽³⁰⁾

One could argue that this is the perfect recipe for blandness, ordinariness and conformity.  Is it not likely that, under this model, society might have created the ultimate in political correctness, where no region or State would need to be adventurous or innovative or different, and where in due course the political leadership would hide behind identical masks?  It may well be true, as Macphee argues, that regions of this kind would be "more stable", but probably so stable that intellectual sterility, timidity and conformity would be their hallmarks.

If the Macphee proposals do not take us anywhere, and if further centralised power keeps being resisted -- as it was at the height of the 1996 Victorian election, when Premier Kennett's push for a single Commonwealth industrial body of law was rejected out of hand by other States -- then the notion of harmony in federal-State laws may begin to appear especially attractive.

In the meantime, it is as well to accept that there is nothing divinely-inspired in the uniform law proposals which come out of Ministerial Councils in Australia.  For this reason, a case might exist for every such proposal to be enacted with a suitable sunset clause, requiring review in five or ten years, and without which review the law would lapse.  It would be a marvellous incentive for politicians and public servants alike to keep up to the mark.

The adoption of such a review practice would in turn accommodate another regular phenomenon in Australian law:  the tendency for so-called uniform laws to get out of kilter when one State or another amends its version to comply with local conditions or pressures.

With regular statutory reviews and sunset clauses, it will not matter if laws begin as uniform and end, after, say, five years, as something of a mishmash.  This very experimentation may produce the best outcomes in the regular five-year review that could be put in place.  After all, should not the real objective lie in determining what is best practice in Australia, not merely the comfort zone of uniformity (and possible mediocrity)?

HARMONY INSTEAD OF UNIFORMITY?

The recent Report of the Western Australian Standing Committee on Uniform Legislation and Intergovernmental Agreements on the National Mutual Recognition Scheme is worth examining.  This bipartisan committee came in with a recommendation that most observers did not expect.

The Committee encouraged the State of Western Australia to enter the scheme, at a time when most observers saw the recommendations as being at odds with Premier Richard Court's continued push against Canberra.

The Standing Committee came up with a number of ways for Western Australia to enter Mutual Recognition so as to protect the State's interests, while at the same time offering some important, albeit novel, observations.

For example, the Report, tabled in the Western Australian Parliament on 28 September 1994, hinted that New Zealand's entry into some Mutual Recognition agreement with Australia might be carried out to Western Australia's and New Zealand's joint advantage.  For New Zealand to join by way of a treaty with the Australian Government could lead to a triggering of the External Affairs provisions of the Constitution, thus negating the States' role.  For New Zealand to join by way of an instrument of less-than-treaty status may, on the other hand, keep the States' role intact.  This recommendation sought to play, quite openly, on New Zealand's own suspicions of Canberra and its fear of being dominated by Australia as a whole.

The Committee sought to extend local MPs' horizons by emphasising the point that Mutual Recognition as a concept did not necessarily involve uniformity at all:  indeed, it could be seen as the very antithesis of uniformity.  For States to give mutual recognition to each other's legal practitioner laws, for example, was to recognise the differences between them, to be relaxed about them, and to accept them.  Once one recognised and accepted those differences it remained only for legal practitioners (to use but one example) to get on with their work in any Australian State, notwithstanding continuing differences between the States.  This, perhaps, throws up a case for us in Australia to drop the use of the term "uniformity in law" and to replace it with "harmony in law".

A further alternative to uniformity, where it touched on the question of referring powers to the Commonwealth, was to avoid actually using a Commonwealth law.  The suggestion here was that the Commonwealth's Mutual Recognition Act should eventually be replaced by, say, one State legislating such an agreed Act, and with other States adopting or mirroring such a law.  The advantage in this to the States and to those antagonistic to Commonwealth encroachment is that the States themselves remain in charge of their own destinies.

This Western Australian Standing Committee has in fact done valuable national work in progressively identifying up to eight models by which "uniform" law can be achieved, noting, of course, that some models are more politically acceptable than others.  (In its second Report, the Committee identified five different models;  in its sixth Report, two more were found;  and in its eleventh report -- on censorship -- yet another was identified, thus eight in all.)

Among the models were those used for Australia's non-bank financial institutions laws (NBFI), and the proposed uniform credit laws.  In both cases, laws covering these fields do not involve Commonwealth jurisdiction.  Therefore, in 1992, all States used the Queensland Parliament to achieve the required uniformity with NBFI.  The method was to have Queensland legislate, and other States simply embrace or adopt the Queensland statute as their own.

By 1996, we are on the verge of achieving updated uniform credit laws across Australia.  Once again, the Commonwealth is not involved;  but the method used by the States is somewhat different from the NBFI method.  Western Australia's Government has opted not to adopt the Queensland statute but instead to introduce its own substantive credit law which, importantly, would reflect the interstate ministerial agreement to such an extent as to make it acceptable to enter the "uniform" national scheme.

Finally, in examining options alternative to Commonwealth-imposed uniformity, the ultimate act must always be to accept the right of a State (or Territory) not to legislate or enter into a uniform scheme at all.  When all is said and done, this is part of the "people equation":  the State or Territory must be allowed to be free to enter or not enter, and in doing so to accept whatever odium or benefit comes from being, or not being, part of the so-called bigger national picture.

WHEN IS IT JUSTIFIED?

Even the most rabid pro-States federalist in Australia would have little difficulty in isolating a time of war as an appropriate time for the use of greater, centralised power.  Indeed, as the gravity of World War II became apparent across Australia, there was little objection to the Commonwealth assuming greater uniform taxing rights, the better to execute a strong war programme.  It was only well after the War that real anger was seen when the Commonwealth refused to vacate the field of uniform taxation.

Similarly, in modern-day Australia there would be little argument that the Federal Government should have -- as indeed it does have, without dispute -- the right to deal with such issues as international communication, foreign relations and defence.

Yet one can point to international trade (which sounds for all the world like a national responsibility) as but one of a host of fields in which the Australian States have -- and should continue to have -- a pivotal, pro-active, independent role.  "Uniformity of national purpose" might well be the guise under which a Federal government would squeeze out the States from this field, but regional differences allow for the States to stay in the field.

Dry-land farming is a case in point.  In the 1970s, Western Australia earned, for its Agriculture Department and for Australia, valuable export dollars from arid countries like Libya, by applying to that country's deserts the methods used successfully to transform low-yielding Western Australian farming areas into highly productive lands.

Foreign relations are conceded as an obvious Commonwealth responsibility.  Yet State initiative must not be ruled out.  For example, Western Australia is often far better attuned to the goings-on in Japan, India, Indonesia and South Africa, if for no better reason than that the State is already benefiting, or is likely to benefit, from direct trade and contact with that part of the world.  It would be ludicrous, for example, to impede Western Australia's thrust into India (where a State Trade office is in the process of being established) merely because foreign relations or foreign trade are functions to be dictated from Canberra.

One might also argue a reverse scenario.  How many Federal MPs, for example, have an intimate and in-depth interest in, and knowledge of, Australia's relations with other countries?  Given that so many of them devote themselves almost exclusively to domestic political matters, one might ask if their role and that of State MPs is that of mere electoral competitors.

How many Federal MPs, for example, have involved themselves in one of the most pressing of Australia's regional issues:  the future of Hong Kong after the British handover to China in 1997?  Is it not odd that few, if any, Federal MPs -- and certainly not the last Foreign Minister, when I referred the issue to him in 1990 -- take the slightest interest in the pro-democracy forces in Hong Kong and their future post-1997?

These musings only become relevant against a backdrop of an increasing number of Federal MPs who decline to look at the wider picture which is preserved for them under the Constitution, while preferring instead to duplicate the work of State MPs in such vital internal issues as education, health, the environment and trade training.

WHAT'S HAPPENING ELSEWHERE IN THE WORLD?

In looking at useful parallels elsewhere, particularly in the US, we can start with the observations made, and in some cases repeated, in a book co-authored by a former Australian Federal Treasurer, Frank Crean, in 1972.  Crean and his co-author, W.J. Byrt, were discussing government and politics in Australia and had the United States system of government under the spotlight.  They quoted from The Federalist, describing it as the first important treatise on federation wherein the doctrine of checks and balances was outlined, namely:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself. ⁽³¹⁾

A reasonable case can therefore be made out to say that checks and balances (against abuse) can only be put in place and used if they are within easy reach of the people who are governed.  Once they get out of their easy, accessible reach, there are no checks and balances at all.  Thus good governments have fewer checks, and bad governments have none.

Perhaps this helps explain why the notion of checks and balances, evident in the United States over the generations, comes home so vigorously to the outside visitor.  In 1994, the members of the Western Australian Standing Committee on Uniform Legislation and Intergovernmental Agreements visited the United States for discussions on uniformity in State and federal law.

Committee members generally found in America a much more robust view of federalism.  Certainly, there appeared to be far less automatic recourse in that country to uniform law than in Australia.  Indeed, a variety of lobby groups exists at the centre -- in this case, Washington -- to steer the federal government and federal legislators away from uniformity or schemes that seek to usurp the role of the States.  A case in point is the National Conference of Commissioners on Uniform State Laws (NCCUSL).

The NCCUSL effectively came into being from a meeting in 1889 of the American Bar Association in Chicago, called to establish mechanisms to compare laws of different States, especially those relating to marriage and divorce, and to make recommendations on the uniformity of such laws.  Two important lessons are on offer to Australian politicians, bureaucrats and law-reformers from this initiative.

The first is the role of the American Bar Association itself.  A private, professional body, it was responsible for the initiative which, in Australia, would usually come from the public sector, and, more particularly, directly from the political process.

The second lesson for Australia appears to be the reassurance given in America a century ago to the effect that the inevitable move toward uniform law did not necessarily have to be to the detriment of the States.  Indeed, the observation was made that:

... a State which unites with other States in framing such general and uniform laws in matters affecting the common interests of all the States, and in the spirit of mutual compromise, through mutual commissions and investigations, yields, in so doing, nothing whatever of its State sovereignty.  On the contrary, the proposed method of voluntary State action takes from the general government any excuse for absorbing powers now confined to the States, and therefore directly tends to preserve intact the independence of the State. ⁽³²⁾

This is precisely the principle reflected in the Liberal Party's 1990 Western Australian policy on Commonwealth-State relations:  the notion that in many cases uniformity between the Australian States is inevitable, but the preferable way to go is uniformity initiated by the States themselves.

This kind of private, professionally-based initiative is not evident in Australia.  The nearest equivalent of the American Bar Association (probably the Law Council of Australia) has no overt commitment, and has made no formal move, to bring about uniformity in a process driven by the States.  Perhaps it ought to.  Neither has the NCCUSL any obvious Australian counterpart in Australia.

This is a great pity, given that the NCCUSL was set up "... as a counter to the pressure of uniformity of regulation established through the [US] national government." ⁽³³⁾  In recent years, Australian Premiers and Territory Chief Ministers have at last created what they call the Leaders' Forum, a body which meets without the Prime Minister, and which appears to be tackling the problem the Americans began to deal with more than a century ago.

The existence in the US of bodies like NCCUSL and the absence, until recently, of a body in Australia like the Leaders' Forum, may help to account for the lack of a federalist culture in Australia which would resist centralist intrusion other than by empty verbal protest.

The US visit by the Western Australian Standing Committee was an important exercise whose value cannot be underrated.  More and more it was brought home to the Committee members that the defensive mode so often adopted by Australian State politicians towards Commonwealth intrusion could and should be countered by something more effective than protest.

The Committee saw strong advocacy in the US for the notion of federation itself:

A federal system is, indeed, a superb scheme of government, but to preserve it there must be constant vigilance to maintain in equilibrium the distribution of powers between the national and State governments.  In drafting ... uniform legislation, the NCCUSL is promoting a program of regulation designed for adoption, not by the national government, but by the States, through which the States can facilitate the goings to and fro of the people from locality to locality and through which the States can facilitate the flow of commerce from State to State.  These measures ... are designed to preserve the integrity of the States ...

The same source goes on to say:

... it has been a theme that uniformity of law by voluntary State action was a means of removing any excuse for the federal government to absorb powers thought to belong rightfully to the States ... ⁽³⁴⁾

Another lesson can be learnt from the Americans in the constant Australian battle to ensure that the federation remains intact as a reality as well as in theory.

In the US in 1975, the National Conference of State Legislatures (NCSL) was created by the States to be a national conduit for lawmakers to communicate with one another and share ideas.  It is a States-funded body, whose job it is to be an effective and respected voice for the States in Washington.

A similar mechanism is needed in Australia.  True, the States now have the Leaders' Forum.  As well, the States regularly attend Ministerial Council meetings, which sometimes include the Commonwealth.  But this lack of an on-going and permanent research capacity, feeding in pro-active ideas for possible joint State action, can be seen as one of the reasons the States in Australia are so often on the back foot in their dealings with the Commonwealth.

The fact is that the Commonwealth has a vastly superior policy-creation capacity only because it better understands the political clout that comes from policy ideas, and because it is prepared to resource such a capacity.  It is no argument to say that the States already have their "watchdog" in Canberra in the form of the Senate.  With the best will in the world, and notwithstanding the leadership role it has taken in scrutiny work, the Senate has eluded the States' House role intended by the Founding Fathers;  and it cannot be relied upon to do the work which a NCCUSL and NCSL does for American State legislatures. ⁽³⁵⁾

UNIFORMITY AT THE INTERNATIONAL LEVEL

It is a common misunderstanding in Australian politics, that only the States and Territories are adversely affected, or feel threatened, by uniformity or harmony, and that they must accept that modern-day Australia needs increased national action.  It is a decidedly false premiss.

It is not just the States who are confronted by the tendency towards uniformity.  The Commonwealth Government and Parliament are confronted by much the same pressure, in the form of international treaties, even if many Federal MPs do not know it. ⁽³⁶⁾

A treaty is no more nor less than a formally concluded and ratified agreement between nations.  That sounds like, and is very close to, a description of a Ministerial Council agreement for internal uniform law.  The accompanying obligations with treaties are indeed grave, requiring, as the former Foreign Minister, Gareth Evans, has stated, that Australia abide by all of a treaty's requirements in every detail.  Yet as one of his predecessors in the Federal Attorney-Generalship, Peter Durack, has observed, Evans "... fails to spell out what exactly he means by a treaty 'applying' to Australia." ⁽³⁷⁾

Evans was reported as having said that, as of August 1994, Australia was party to 920 treaties.  Yet in all cases, the executive government of the day, on Australia's behalf, enters into these treaties (a direct form of uniform legislation) without any requirement for the contents to be examined by the Federal Parliament.  Thus the fears that State MPs have about a State Minister's power to enter into an interstate agreement to achieve uniformity should be of common concern to the Federal MP who is confronted with the same problem with international treaties.

It is significant that when the possibility was raised that the Federal Parliament should debate treaties before ratification, Evans was overheard to respond (although not apparently by Hansard) and was widely reported to have said:  "No way, Jose!"  Yet this lack of understanding about Parliament's role is not exclusive to a highly capable individual like Evans.  In late 1994, when the Australian Leaders' Forum, consisting of all Premiers and Chief Ministers, considered the impact of international treaties on State law, they argued the case for the Federal Parliament to scrutinise the contents of treaties, but not their own Parliaments, notwithstanding the fact that treaties frequently affected State and Territory law.

CONCLUSION

Of all the issues canvassed here, and against a backdrop of a world much influenced by free-market and competition-oriented policies, the one not so far discussed is that economics dictates that the processes of uniformity be speeded up.  This issue of efficiency is most often at the top of the list of those arguing for reform-cum-uniformity.  Significantly, this is now under real challenge in Australia, and not just from the politicians, but from reputable economists in the very vanguard of microeconomic reform.

In evidence before the Western Australian Standing Committee on Uniform Legislation and Intergovernmental Agreements, the industry economist, Nicky Cusworth, expresses views which go to the very heart of the matter.  She points out that uniformity among the States is generally favoured for two reasons:  first, it removes impediments to interstate trade, and, second, it should result in reduced compliance costs because of administrative simplicity.

She told the committee:

Our concern with the uniformity process has been that quite often the advantages which one should get, of simpler compliance because of uniform legislation, have been undermined, or even completely overtaken by the fact that national legislation has tended to be far more complex and far more onerous than the State legislation which it has replaced. ⁽³⁸⁾

Her views as an economist mirror those of the jurist, Mr Justice Parker, and the yet-to-be Prime Minister, Malcolm Fraser, cited earlier.  All in their own way reflect the views of a growing number of leading academics who see no great intrinsic merit in growth at the centre, as distinct from influence out at the periphery (or the States, or provinces).  With that lead given by them, it perhaps remains now only for the politicians, State and federal, to have the vision and the courage to re-examine some of the shibboleths of past eras, and to challenge the notion that the uniformity that comes from lack of diversity has some special kind of sanctity.  It does not.

In the field of media ownership, Australian politicians virtually speak as one in their opposition to "excessive" concentration.  In recent years, the nation has been treated to at least one State-based inquiry into print media ownership, with terms of reference which hinted at concerns over the concentration of ownership.  That occurred under a State Labor Government in Victoria.

It is interesting, as reported in the Australian Business Law Review of April 1992, that this was no isolated concern.  More than a decade earlier a retired Supreme Court judge from Victoria (appointed under a State Coalition Government) brought down recommendations for legislative action to regulate the increasing trend of concentration of ownership.

In Canberra in the early 1990s, the then Minister for Transport and Communications, Kim Beazley, sponsored a Select Committee of the Parliament on the Print Media, with a special and explicit reference to the adequacy of Commonwealth law and practice in fostering competition and diversity of ownership in the print media.  This initiative followed the Hawke Government's concern, expressed in the mid-1980s, at the growing dominance of Sydney and Melbourne television stations in Australian television, and suggested that the then rules contributed "... to that concentration of ownership and power which it was originally intended to prevent". ⁽³⁹⁾

Here we see the spectacle of mostly Labor, but also some non-Labor, leaders expressing or implying their horror at the concentration of media power in Australia.  Yet the same leaders generally reject the notion that concentration of political power in Australia is any direct threat to the freedoms and liberty of the people.  The same leaders have been to the forefront in advocating uniform national laws -- or straight-out Canberra-based law -- in an endless number of spheres.  In this vital area of human influence -- media ownership -- they eloquently promote the argument that diversity, or at worst, a measured dose of uniform practice, gives Australia the best of all chances to achieve the balance this paper advocated in its opening arguments.

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ENDNOTES

1.  Thomas J. Courchene, "Two Cheers for Australian Federalism" in Australian Federalism:  Future Directions Conference, Centre for Comparative Constitutional Studies, Melbourne, July 1994.

2.  J.A. La Nauze, Alfred Deakin, A Biography, Melbourne University Press, 1965, Volume 1, page 173.

3.  John Edwards, "Australian Federalism:  Future Directions" in Australian Federalism:  Future Directions Conference, op, cit., footnote 1.

4.  Ibid., page 2.

5.  Phillip Pendal, "Commonwealth-State Relations:  A Blueprint for WA for the 21st Century", Liberal and National Parties of Western Australia, 1992.

6.  Courchene, op. cit., page 3.

7.  Nicky Cusworth, "Competition, Uniform Legislation and the Hilmer Report", unpublished MS, 1995, page 4.

8.  Cheryl Saunders, "Accountability and Access in Intergovernmental Affairs:  A Legal Perspective".  Papers on Federalism, 2.  Requoted from the Fourth Report, The WA Standing Committee on Uniform Legislation and Intergovernmental Agreements, Perth, 1994.

9.  Courchene, op. cit., page 4.  The emphasis is the author's.

10.  Ibid, page 16.  Once again, the emphasis is the author's.

11.  Irving Saulwick, "Popular Attitudes to Federalism", in Australian Federalism:  Future Directions Conference, op. cit., footnote 1.

12.  W.J. Byrt and F. Crean, Government and Politics in Australia, McGraw-Hill, Sydney, 1972.

13.  Kevin Parker, QC, quoted from the First Report, The WA Standing Committee, Perth, 1994.

14.  Ray Aitchison, Looking at the Liberals, Cheshire Publishing, Melbourne, 1974, page 135.

15.  Cusworth, op. cit., page 6.

16.  Ibid, page 7.

17.  Ibid, page 2.

18.  Ibid, page 8.

19.  M. Nahan, Myth and Reality in the Economic Reform Debate, Perth, 1994, page 37.

20.  WA Legislative Assembly, Terms of Reference, Standing Committee on Uniform Legislation and Intergovernmental Agreements, 1993.

21.  Sixth Report, The WA Standing Committee, A Consideration of the Mutual Recognition Scheme, Perth, September, 1994.

22.  Brian Head, "The Federal Imagination:  Making the System Work Better" in Australian Federalism:  Future Directions Conference, op. cit., footnote 1, page 13.

23.  Loc. cit.

24.  See page 8 above.

25.  Fourth Report, The WA Standing Committee, page 3.

26.  Pendal, "Commonwealth-State Relations:  A Blueprint for WA for the 21st Century", op. cit., 1992, page 2

27.  Ibid., page 4.

28.  I. Macphee, "Towards A Model For Two-Tier Government", in Australian Federalism:  Future Directions Conference, op. cit., footnote 1, page 3.

29.  Loc. cit.  Emphasis added.

30.  Ibid, page 10

31.  Byrt & Crean, Australian Government and Politics, op. cit., page 60.

32.  Fourth Report, WA Standing Committee, June, 1994, page 17.

33.  Loc. cit.

34.  Ibid, page 18.

35.  The Standing Committee's investigations into scrutiny mechanisms in the UK and the European Community can be found in the Fourth Report, cited earlier.

36.  See the excellent article by Senator Rod Kemp, "Australian Disputes, Foreign Judgments" in Review, Volume 46, No. 2, 1993.

37.  P. Durack, The External Affairs Power, Perth, 1994.

38.  N. Cusworth, Transcript of evidence, W.A. Standing Committee, Perth, March 1, 1995.

39.  M. Duffy, Australian Journalism Review, Volume 9, January-December, 1987, page 8.