Dr Keith Kendall
First published in The Age on 29 December, 2012.
Listen to enough critics for long enough and you'll be convinced that the Federation is the only thing holding Australia back from dominating the world. Apparently, without the states and a single central Commonwealth government dictating everything, Australia would be taken seriously as a middle power, we would have a well-funded and well-functioning education system, wasteful spending would be a thing of the past and populist politics would no longer exist.
You have to be kidding.
States' critics (such as Allan Patience on this page last week) seem to attribute some sort of mythical wisdom to the Commonwealth, as if only ever good things come from a central government. And that all our resources need to be concentrated there, otherwise how can we hold our heads up overseas?
This last argument ignores that the world's only superpower, the United States, and the only continental member of the European Union that is currently taken seriously, Germany, are both federations. Being a federation hardly seems a liability on the world stage.
But turning back home, can you imagine what an unfettered Commonwealth government would be like in the wrong hands? Don't worry about the damage that has been done by the current one - think roof insulation, school halls, green loans, and $900 cheques to foreign citizens and those no longer with us.
Think what would have happened if Bob Carr, Morris Iemma and Kristina Keneally had been running the country instead of John Howard and Peter Costello for all those years. The disaster that is New South Wales would be played out on a national scale.
It is also just plain wrong to say that the Federation has not changed since 1901. The High Court has applied the constitution so that the Commonwealth now has much more power than it did at the start. It is because of the High Court that the Commonwealth can tell Tasmania where it is allowed to put a dam, has the ability to allow companies around the country to choose not to pay penalty rates on public holidays and can effectively prevent the states from levying taxes that they may do lawfully. The Federation has changed, just not in a good way.
Federalism has the advantage as well of weeding out bad laws. For example, it is only because of federalism that we don't face death taxes today. It was only when Queensland abolished theirs that the rest of the country followed. Because of the mass migration of retirees to that state from everywhere else, this impost was shown for the ridiculous interference that it was. A central government that imposes such bad laws leaves us with nowhere to go (except overseas).
The major problem with the Federation is the separation of responsibility from power. Stemming from the High Court's approach to the constitution, the Commonwealth holds the whip hand when it comes to raising money, but the states are those who have to provide the programs and services.
It's ridiculous to criticise Liberal state governments struggling to balance their books not only for cutting back their Labor predecessors' largesse, but particularly when they are doing so while fiscally dependent on a Labor Commonwealth government so addicted to spending that it cannot raise enough revenue for its own habits, let alone provide sufficient funds for necessities provided by the states.
The Federation is in need of reform, but abolishing the states is not the answer. Resolving the current vertical fiscal imbalance will align the power to pass laws and spend public money with the responsibility of ensuring those funds are spent wisely. Governments that do not will lose elections (and, in the case of the states, populations).
And those who still want to see the states abolished should take pause. A central government, absent a bill of rights, is likely to be unfettered in the laws that it can pass. Had this been the case since 1901, for the left-wingers, this would mean the Communist Party would be illegal, criticism of the government could be snuffed out and voters could be disenfranchised. Conservatives, you would have nationalised banks, death taxes and Rudd's health system. And the case for a bill of rights becomes that much stronger. Be careful what you wish for.
Dr Keith Kendall is a senior lecturer in the Law School at La Trobe University and a member of the Samuel Griffith Society, a society dedicated to upholding the Australian constitution.