Event
Date
by John Warhurst
Presented at Manning Clark House Weekend of Ideas “Australian Citizenship - is it really worth having?”, 29-30 March 2008
My main theme will be that the small states and the territories are pushed around within the Australian federal system. Size does matter in politics. This means that in one important sense at least the citizens of small states/territories have unequal rights to other Australians. I link small states and territories because, despite the constitutional differences, in politics the matter of size is equally as important as the constitutional limitations of the territories (the constitutional position of the territories does enable the central government to take particular liberties with them). If the territories happened to be bigger, however, their constitutional weaknesses would be balanced by greater political strength.
I’ve always been attuned to the interests of citizens in small states and territories and sympathetic to their grievances. Being born and bred in South Australia and having spent twenty years in Canberra probably explains it. This talk will be about citizens in the four smaller jurisdictions in Australia: Tasmania, South Australia, the Australian Capital Territory and the Northern Territory.
The smaller jurisdictions are at a numerical disadvantage. South Australia and Tasmania have 12 senators each but only ten and five members of the House of Representatives respectively. The ACT and the Northern Territory are each represented by only two senators and two members of the House of Representatives. They don’t have the numbers within the party rooms of the major parties or in the Parliament itself to make a difference in argument. More importantly when it comes to government decisions they are electorally insignificant. The interests and views of their citizens can be pushed to one side more easily.
There are a number of cases that can be used to illustrate my argument. Contemporary politics is full of them. They include national political involvement in environmental politics in Tasmania and in water politics in South Australia. They also include national interference in overturning legislation to allow euthanasia in the Northern Territory and same sex civil partnerships in the Australian Capital Territory. Each of these issues would have played out differently in my view if the jurisdiction in question had been one of the larger states.
However, before going on, I do admit that the costs and benefits of being small are not all one way. Tasmanian citizens have constitutional protection for their generous right to five representatives in the House of Representatives and each of the small states does very well out of equal representation in the Senate. Furthermore, fiscal equalization mechanisms mean that per capita the small states receive a generous share of federal finance. From time to time the New South Wales and Victorian governments, in particular, make a public issue over this situation. It is also true that from time to time the small states and territories can be bought off more easily by the central government because they are small. Independent Senator Brian Harradine, for instance, was able to do deals with the Howard government in return for his Senate vote partly because Tasmania was so small. If he’d been from a larger state the deal would have cost the central government too much.
Nevertheless, on balance those of us who live in smaller states and territories are second-class citizens when compared to our compatriots in the four largest states. I’ll now briefly take my four case studies in turn, concentrating more on two of the most recent.
Tasmania and the Environment
The proposal for a Tasmanian pulp mill to be built by Gunns Ltd with the support of the Tasmanian Premier was a major issue during the 2007 election campaign. The rights and wrongs of the mill are not the concern here, although I am personally opposed to the mill proceeding as proposed. Rather it is clear that an important factor was how the wider Australian electorate saw the issue. Both Malcolm Turnbull and Peter Garrett, then Minister and Shadow Minister for the Environment respectively, struggled with the issue because it was so divisive in the general community and within Tasmania. In the end voters in the two local Tasmanian electorates (Bass and Braddon) swung just enough for Labor to regain the two seats from the Coalition. Federal Labor’s apparent opposition to the mill (too complex a story to tell here as everyone was ducking for cover) cost it with some Tasmanian voters without winning it too many votes on the mainland it would seem (Turnbull easily held his seat of Wentworth in Sydney despite a campaign against him on the mill issue led by the businessman, Geoffrey Cousins).
Whatever your view of the proposed mill, the question is whether or not Tasmanians alone should have been allowed to work out the issue within their own democratic processes at the next Tasmanian state election. Presumably then the pro-mill State Labor government of Paul Lennon could be called to account by his own citizens. This raises the bigger question of whether citizens’ rights are better protected by local, central or even international decision-making.
This sort of thing happens regularly to Tasmanians on a variety of issues (Gay rights is one that could be discussed). A much earlier environmental case with similar lessons occurred in 1983 at the time of the federal election that brought Bob Hawke’s Labor government to office. The national environment movement campaigned to stop the building of the Franklin Dam against the wishes of the Tasmanian state government. The Fraser government refused to intervene to stop the dam though it did offer to buy off the Tasmanian government with a compensation package. Hawke promised to stop the dam and earned the support of the green movement. Hawke won the election and stopped the dam and probably benefitted from the green support on the mainland. But the Liberals took all five Tasmanian seats, an indication that Tasmanians themselves were angry with Hawke’s use of central power to intervene whatever their view of the dam issue itself.
Clearly Tasmanian opinion was over-ridden by national opinion and by national politics. A strong federal government could afford to dismiss Tasmanian rights; there was ultimately an unsuccessful High Court challenge against the Commonwealth government actions.
South Australia and the River Murray
Australia continues to struggle unsuccessfully with the decline of the Murray Darling Basin river system. One victim of this struggle is the South Australian end of the River Murray and ultimately the rights of South Australians.
Right up and down the Murray-Darling upstream users of water for irrigation purposes impinge on the rights of those downstream, so it is not just a South Australian issue. Citizens of NSW suffer at the hands of citizens of Queensland. But South Australians are at the sharp end.
Just this week the Council of Australian Governments signed a $10 billion Murray-Darling rescue plan, ending a long stand-off with the Victorian government. The outcome, a $1 billion deal with Victoria, illustrates the politics of water in Australia. Victoria, because of its size (as well as the constitutional position), won concessions that a desperate South Australia could never have demanded.
Northern Territory and Euthanasia
One of the most controversial issues of the first year of the Howard federal government concerned euthanasia. The Commonwealth Parliament, on the basis of a private members bill moved by a then Liberal backbencher, Kevin Andrews, overturned Northern Territory legislation allowing euthanasia. Both the House of Representatives and, more narrowly, the Senate supported Andrews’ bill.
One of the significant issues in the parliamentary debate, though not the main one, was the rights of Territorians to introduce their own legislation. NT and ACT senators and members took the opportunity offered by a non-party conscience vote and voted against the private members bill on these grounds regardless of their own views of euthanasia. But there were not enough of them to make a sufficient difference. If the legislation had emerged from a large state Parliament the dynamics would have been different. Twelve senators rather than just two might have voted against the bill.
Australian Capital Territory and Civil Partnerships
The issue closest to home for us is the rights of ACT citizens. There is a long history of differences of opinion between the ACT government and the federal government whatever the party holding office. Some of these issues are about material issues, such as the Canberra airport and land-use policy generally. But others have been about socio-moral issues like the proposed heroin-injecting trials at the time of the Carnell Liberal government.
The latest example of such a socio-moral issue has been same sex marriage, an issue with a complex and relatively long history in Australian politics. Marriage is a Commonwealth constitutional responsibility. In 2004 the federal Labor party had fallen into line, in a pre-election atmosphere, with Howard government legislation banning same sex marriage. There had been considerable mobilizing of opposition to same sex marriage by Christian groups such as the Australian Christian Lobby (ACL). There was dissent in both parties and the gay lobby criticized Labor’s Shadow Attorney-General Nicola Roxon for agreeing to the religious lobby’s demands.
In 2006 the Howard government disallowed the ACT Assembly’s same sex civil unions legislation. The disallowance motion passed the Senate narrowly with several Labor senators from other parts of Australia abstaining and ACT Liberal senator Gary Humphries crossing the floor to oppose it on the grounds of territory rights.
This year the ACT Assembly has presented a modified civil partnerships legislation in an attempt to meet federal government concerns. But the new federal government’s eventual approach remains under discussion. There has been considerable lobbying and negotiation involving the federal and ACT governments and ACL. Territory affairs were also caught up in the November federal election and ACL claims that the then Rudd Opposition promised to knock back any civil union legislation that mimicked marriage.
The details of the dispute need not concern us here but the general themes are clear. The ACT community has very little leverage, despite the decision of a duly elected territory government, due to its small size. The federal arguments fall back in a familiar way on the need for uniform state and territory legislation. Neither persuasion nor threats work for the small ACT government.
Conclusion
The evidence suggests that on many issues the inhabitants of the smaller states and territories are second-class citizens. Where they can, the representatives of these four jurisdictions protest at national intervention; but often they protest to no avail.
Does the type of issue matter? What about local issues of national concern (tail wagging the dog?)? The type of issue does matter. In my view the case for the rights of smaller jurisdictions is strongest when the issue is self-contained within their own borders. This means that a weakness of the right of ACT and NT citizens to ultimately determine same sex partnership legislation and euthanasia legislation is the fact that in practice the issue crosses state boundaries within Australia. Other Australian citizens would become involved. This means that the issue is not one just for territorians alone. The rights over environmental and land-use issues are to me much clearer cases where local rights should prevail.
Nevertheless, my general case stands. In the general discussion of citizens’ rights in the face of a centralizing national government it should be remembered that some citizens are in a weaker position to others to defend themselves. Citizens in the smaller states and in the territories are second-class.