FOLLOWING THEIR defeat in the High Court on WorkChoices, the states, led by South Australia Premier Mike Rann, have called for a constitutional convention in 2008 to discuss their role in the federation.
Attorney-General Philip Ruddock told ABC News Radio last week that conventions have been held in the past, and he had “not seen from them, over a long period of time, very much movement and agreement”.
“But if [the states have] got specific proposals of the sorts of things that they think ought to be examined, we could have a look at it,” Ruddock said.
Senior counsel Mordy Bromberg believes the convention is a good idea. “This High Court decision has taken by surprise the mainstream view of the federal/state balance,” he said.
Bromberg said that it would have been far better had the resulting balance been arrived at through “some wider discourse than what we’ve had”. For “into the future … unless there is realignment, it’s highly likely that the states will largely just be administrative arms for the implementation of Commonwealth policies.”
Andrew Lynch, senior lecturer at the University of New South Wales faculty of law, said that “it is quite urgently time for the two levels of government to have a discussion about what is in their interests to share, and what also should be left to one level or the other”.
“The difficulty is that the Commonwealth has got the upper hand, and regardless of who’s in power at the Commonwealth level, the idea of sitting down at the table and talking about returning or transferring particular powers to the states probably doesn’t hold as much appeal as it does for the states,” he said.
But according to Lynch, “there are things that the Commonwealth doesn’t have, that it might well want from the states, in which it could do a deal on”.
“For example, even the Industrial Relations case — sure it confirms the current national scheme, but not every worker is covered by that scheme. It’s still about 15 per cent of the population that isn’t covered.”
Yet Douglas Graham, former solicitor-general for Victoria, does not think a convention is a realistic option.
“The call for a convention is a political reaction in order to state a position,” he said. “But I don’t think it’s realistic, and I don’t think it’s necessary, and I don’t think it would ever happen.”