carbon tax is 'unconstitutional', page-3

It won't get of the ground John Howard and the far right work place idealogues made sure of that.

http://www.abc.net.au/radionational/programs/perspective/greg-craven/3382392

""Greg Craven
Broadcast: Wednesday 6 December 2006 5:55PM Work Choices Shipwreck

Supporting Information

There are three essential steps in responding to a shipwreck. They are, in order, curse the gods; ascertain the damage; and swim like crazy.

After the High Court's Work Choices decision, the States should be in absolutely no doubt that this is a shipwreck of Titanic proportions. Not since the 1920's has the Court struck such a devastating blow against Australian federalism.

In the circumstances, the cursing of judicial gods by the States is entirely reasonable. The judgement in the Work Choices case is one of the most constitutionally autistic in the Court's long history of literalistic misinterpretation.

How a Court can weigh every tiny word of a Constitution without grasping the central premise that it was meant to create a genuine federation must baffle historians and psychoanalysts alike.

But all this now is in the past. The only relevant questions facing the States into the future is understanding how much damage has been done, and determining an intelligent response.

On the question of damage, no-one should fool themselves. This is the greatest constitutional disaster to befall the States in eighty years.

The substantive legal implications of the decision are almost unquantifiable. Broadly, it gives Canberra power over any area involving a corporation.

This effectively means that the Commonwealth has an open cheque to intervene in almost any field of State power which catches its eye, from education, through health, to town planning and the environment.

Worse, there is no chance that Canberra will use these powers to take over policy nightmares like our health and education systems. Instead, Canberra will employ its new capacity to cherry-pick politically attractive items.

These nightmare scenarios will be intensified by three brutal realities of modern Australian federalism, all clearly evidenced by the Work Choices saga.

First, we no longer have even a deeply biased constitutional umpire. The High Court has dropped federalism like a used tissue.

Second, federalism no longer enjoys the support of mainstream conservatives. The Howard Government has done more damage to Australian federalism than any in our history.

Third, we will be faced by a Commonwealth Government that is not only the paymaster of the federation, but now its ringmaster as well. This is fatal to any notion of balance of power.

All in all, the High Court has delivered what liberal conservatives have long feared: an omnicompetent national government effectively unrestrained by a constitutional division of powers.

So much for recrimination and woe. The real question for the States is the direction in which they should swim. This is an occasion for brutal realism.

As of yesterday, the time of the States as semi-independent constitutional entities is over. They must adapt to a world in which the Commonwealth unequivocally is master, while striving to preserve their individuality.

Inevitably, this will mean abandoning co-ordinate and even co-operative federalism in favour a model of "leadership federalism". Under that model, the Commonwealth increasingly would set the national parameters of fundamental policy, but should have the elementary brains to leave local interpretation of that policy to the very different States.

In this way, for example, it may be that Canberra would set the broad outlines of a national schools curriculum, but Brisbane and Perth would adapt it to local circumstances.

The biggest difficulty will be to persuade a triumphalist Commonwealth that leadership does not mean dictation. The Prime Minister's soothing comments that he has no further territorial ambitions are not to be taken seriously.

Paradoxically, in their desperately fallen condition, the States are at last going to have to find a modicum of courage and resolve. They will have to look the Commonwealth in the eye if they are to be led firmly by the hand rather than by the tender parts of their anatomy.

This will require genuine political leadership. To begin with, unity will be indispensable: the Premiers will have to shout in one voice against the policy dictates of Canberra.

Serious suffering is on the cards. Instead of whining piteously or running to the High Court, the States are going to have to reject Commonwealth largesse proffered on unacceptable conditions. They will have to politically mobilize their communities as never before.

It is in the interests of both Commonwealth and States that there be real talking about the operation of the new Australian bastard federation. Without real dialogue, its inter-governmental relations will resemble a rancorous slapstick comedy.

Peter Beattie is right that a Constitutional Convention would be a good start. The States could practise looking the Commonwealth in the eye, and even the people might be asked their opinion." "