Published: Monday 2 Mar 1998
"If the prophets of the demise of the nation state be right, we should be thinking about making international decision making itself more democratic, open and transparent." - Sir Anthony Mason.
KEYNOTE ADDRESS - FORMER CHIEF JUSTICE OF THE HIGH COURT OF AUSTRALIA,
SIR ANTHONY MASON
Your Excellency, distinguished guests, ladies and gentlemen.
I welcome you all to this opening ceremony of the Melbourne Convention of 1998. In my capacity as Chairman and as pinch-hitter this evening for the Premier of Victoria, I welcome particularly those participants from interstate to Victoria and, of course, to Melbourne.
The Melbourne Convention of 1998 commemorates the Melbourne Session of the Australian Federal Convention of 1897-98. That Convention, having met first in Adelaide from 22 March to 23 April 1897 and then in Sydney from 2 to 24 September of that year, concluded its deliberations in Melbourne, where it met from 20 January to 17 March 1898. Kingston, Chairman of the Convention and Premier of South Australia, described the Draft Constitution adopted by the Convention as “the most magnificent Constitution into which the chosen representatives of a free and enlightened people have ever breathed the life of popular sentiment and national hope”.
One hundred years later there would not be many Australians who would speak of our Constitution in quite such enthusiastic terms. The Constitution has vociferous critics and, from what we are told, there is wide-ranging ignorance of its provisions. Yet, despite that criticism and ignorance, the Constitution has united us as a nation, given us a sense of national identity and purpose and provided a framework of government which has served us tolerably well for almost a century.
In those respects the Constitution has achieved the principal purpose which the delgates assembled in 1898 in this very chamber had in mind. That was to bring into existence a federal Australian nation, then a part of the British Empire under the Crown, in a world which consisted largely of powerul nation states, their colonies and dependencies. SInce then many changes, some of them quite radical, have taken place, both in Australia and the world at large.
In the far-off days of my youth, as a matter of every day life, it was very much State rather than Commonwealth law and regulation that affected our lives.. Today, it is a different scene. Privatisation of utilities is transforming the States into regulators rather than service providers and the Commonwealth law and regulation reach into many aspects of our lives. The steady accretion in the exercise of Commonwealth power has been matched, if not surpassed, at the international level by the exercise of power and influence by international and transnational corporations. Of even greater importance, perhaps, has been the technological revolution which, along with the rise of economic rationalism, has resulted in the emergence of a world economy and a world market in which the provision of financial and other services transcends national boundaries.
These developments naturally raise serious questions about the adequacy of the Constitution and our existing governmental arrangements. That is why this Convention has been subtitled “Federation into the Future”. It has the task of identifying ways of making the Australian federal system more effective. The task is not an easy one, but the response to the challenge if successful can play an important part in propelling the Australian Federation into the new millennium.
At the same time, we should not be too ambitious in an attempt to redesign the Constitution. The strike rate of past attempts to amend the Constitution is low, so low as to discourage governments and politicians from supporting amendments that are substantial, let alone radical. Perhaps we have been too much concerned with who exercises power rather than with how power should be exercised for the benefit of Australians. Apart from examining obvious questions, such as s.90 and the desirability of four year parliamentary terms, the Convention will consider achievable goals in the form of proposals for intergovernmental procedures and arrangements, involving appropriate consultation with interested parties, with an emphasis on the need for flexibility.
Important advances have been made in this country through co-operation between governments. Colonial governments worked together in the 1890s to bring about conventions which led to the Australian Federation. Melbourne had the privilege of hosting both the first of those conventions in 1890 in the Legislative Council chambers, as well as the last in 1898.
In 1890, the task was to secure an agreement as to the path and the broad principles to be followed. In 1898, the delegates were confronted with the even more difficult task of finalising a constitution which gave effect to the principles in a way that would secure the approval of the colonial governments and the peoples of the six colonies. As this was the last of the conventions, the delegates were called upon to resolve issues which had remained unresolved and to grapple lwith the reopening of issues which had previously been settled.
It is interesting to reflect upon the composition of the Melbourne Convention - not, I hasten to add, for the purpose of making a comparison which would be invidious. Among the fifty delegates there were sixteen present, past or future Premiers, three future Prime Ministers and four future High Court Judges, one of whom was Sir Isaac Isaacs who was to become the first Australian born Governor General. Great and prominent Australians, such as Barton, Lyne and Reid from New South Wales, Deakin, Isaacs and Quick from Victoria, Downer and Kingston from South Australia, Braddon and Fysh from Tasmania, and Forrest and Lee Steere from Western Australia were just some of the delegates who came to Melbourne in 1898.
The Convention resolved a series of contentious issues. They included the means for resolving disputes between the Houses, the conciliation and arbitration power and a highly sensitive issue affecting South Australia, Victoria and New South Wales, the Commonwealth power in what is now s.100 concerning rivers. In addition, the Convention settled, or, more accurately, believed it had settled the financial relationship between the States and Commonwealth, a belief which time and later events have eroded. The draft Bill settled by the delegates became, subject to minor alterations, the Constitution of the Commonwealth of Australia on 1 January 1901.
In 1898 delegates were primarily concerned with the relationship between the new Commonwealth and the new States. A century later, it is necessary to discuss the role of international organisations and of local government. That is because their role is now central to this Convention’s principal area of concern: how to improve our federal democracy in the era of the global economy?
International law was of little concern to the Convention of 1897-98; international conventions did not then, as they do now, attempt to regulate the conduct of peoples and States within their national boundaries. Nor was the Convention concerned with transnational corporations. But interstate trade and commerce was of central importance - it was the driving force behind the federal movement. The notion of free trade provides a thematic link between 1898 and 1998. Then the sole focus of attention was borders within Australia; now, the focus of attention is national borders, as well as State borders.
In order to meet the challenge of globalisation and to take advantage of the opportunities which it offers, governments at all three levels in Australia must engage in effective co-operation. Since 1992 co-operation between Commonwealth, State and Territory governments has increased through the mechanism of COAG and Ministerial Councils. But the crisis of indecision over Sydney’s international airport and the Hindmarsh Island Bridge saga indicate that there is scope for substantial improvement in our decision making processes. There is also the question whether local government, which has not always embraced economic reform, has a larger part to play in intergovernmental co-operation and whether that role should be recognised in the Constitution or in State Constitutions.
Ratification of international and regional conventions (treaties) by Australia establishing regulatory regimes or standards can result in a so-called contraction of national sovereignty and a democratic deficit. That is because commitment to an international obligation can effectively restrict our options to pursue a different course. To give one example, when the then Federal Government subscribed to the TRIPS Agreement in 1994 relating to intellectual property in return for other trade benefits, we accepted an intellectual property regime engineered by diplomats at an international conference and assumed international obligations which effectively impaired Parliament’s capacity to frame intellectual property laws as it saw fit, except at the price of violating our international obligations under the TRIPS Agreement.
Fortunately the democratic deficit has been alleviated, though not eliminated. On 2 May 1996 the present Minister for Foreign Affairs, when announcing the new treaty procedures, said: “... it is vital to note that trade flows, environmental concerns, human rights, to name only a few of an interesting array of such issues, can only be effectively managed and handled through international agreement. This means that treaties, the fundamental instruments of international law, are an increasingly important component of contemporary international relations and of Australia’s own legal development”
The new procedures require the tabling of a treaty before it becomes binding on Australia. The tabling of the treaty is accompanied by a National Interest Analysis showing the impact the treaty has on Australia.
A Joint Parliamentary Committee on Treaties now considers tabled treaties, the Analysis and any other question relating to an international instrument referred by either House or a Minister. The role of the Committee is to provide detailed scrutiny and bring forward reports for consideration by Parliament. A Treaties Council, acting as an adjunct to COAG, has an advisory function.
The absence of provision for parliamentary approval of a treaty is a matter of some concern. A treaty once ratified imposes an obligation to legislate in conformity with ite requirements in that respect and in effect deprives Parliament of its freedom of choice, otherwise than by violating the treaty. Why should Parliament not be specifically required to approve the treaty if its provisions amount to regulation or standard setting?
In any event, the efficacy of the new procledures in remedying the democratic deficit depends very largely on the range and depth of consultation in Australia and the responsiveness of the government to that consultation. Here there is a need for co-operation between levels of governments if effective democratic input is to play a worthwhile part. And when it comes to consultation with the community, my experience is that the States are closer to their communities than is the Commonwealth.
International treaty making procedures should be so structured that they allow a proper place for national democratic decision making processes to play a part in treaty formation. Then the question is whether governments engage in comprehensive consultations and raise significant issues for national and international public debate. It will be interesting to ascertain what the two year review to be made by the Australian review committee has to say on that crucial point.
Another avenue is to encourage an input from sectional interests at the international level. The Internet and other communication services enable sectional interests in different countries to mobilise their viewpoint internationally in a way not before possible. So it is conceivable that, in future, international decisions could be taken in the light of viewpoints experessed by sectional interests on an international basis. If the prophets of the demise of the nation stat be right, we should be thinking about making international decision making itself more democratic, open and transparent. International negotiation and decision making has traditionally been less open and transparent than the democratic process.
The problems are considerable. Take the current negotiation in OECD over the Multilateral Agreement on Investment, an agreement which could have a great impact on Australia if we ratify it. The negotiation, so far as Australia is concerned, is in the hands of Treasury. The negotiation is not an open process; it is being conducted in secret. There are no doubt reasons which can be advanced to support the veil of secrecy. But at the end of the day it is possible that the terms will be set in concrete leaving Australia with very limited choices to make, the effective choices having been made by Treasury and Federal Cabinet during the course of the unpublished negotiations.
The case for greater co-operation between various levels of Australian government is based both on pressures arising from globalisation and on the need for greater domestic efficiency. Efficient and informed decision making by local authorities is an essential element in both creating an attractive climate for overseas investment, and in co-operating with Commonwealth and State governments. Creating a favourable climate for investment may call for the creation of economic regions in which local government has an important role. And the principle of subsidiarity, in the global era, may require local government to provide services as the provider which is closest to the consumer.
The last matter for consideration is the economic union and financial arrangements. It has been said by one overseas commentator that the Australian Federation is not a true federation simply because the States are financially dependent on the Commonwealth.
There is a real question as to how tax revenues should be shared or distributed as between the Commonwealth and the States. Should distribution seek to alleviate inequalities in the financial position of individual States? There is the further point that political responsibility is enhanced if the government that expends tax revenue also has the obligation to raise that revenue. Certainly the annual spectacle in Canberra, where the Commonwealth provides the cake and the Premiers, or most of them, complain of its inadequacy, does nothing at all to enhance the reputation of the political process; it simply reinforces the impression of confrontation instead of co-operation.
But this fiscal question is subsidiary to a larger question: how do we see the Commonwealth and the States in the new global economic world. Underlying that question is another - whether central or decentralised decision making is a better way to go.
There are also issues relating to the public/private divide. What obligations of accountability should apply to privatised and corporatised services? To what extent, if at all, should provision be made for a democratic input into their operations?
The proceedings of the Convention will close with a communique. For those of you who may not know, a communique is defined by the Shorter Oxford Dictionary as “an official intimation or report”. In World Wars I and II, it was a term employed by the Allied High Command to describe an announcement of the course of battle, as often as not to announce a withdrawal of our units in the face of superior enemy forces to strategically prepared positions in the rear. However, communiques announced advances as well as retreats and I am confident that the organisers of this Convention chose the term with the emphasis on advance, not on retreat.
The outline I have given is a short and incomplete sketch of the Convention agenda. So oyou can see that we shall be fully occupied. We have three days. In 1989 they had two months. But they produced a new Constitution and that, I am sure, is something no one wants us to do.