While all agree that Australia is, or was intended to be, a federal system of government, there has been limited discussion of the role that secession plays as an implication of the federalist principle. To rectify this neglect, I propose to investigate the legality of the unilateral secession of an Australian state.
The background to my inquiry arises from Western Australia’s 1933 attempt at seceding from the Commonwealth of Australia. A referendum held on 8 April 1933 in Western Australia produced a compelling result: nearly 70 per cent were in favour of WA seceding from the Commonwealth. It was an emphatic rejection of a federation that had been consummated a mere 32 years previously. Despite the two-thirds majority in favour of seceding, WA did not obtain recognition for its claim, either from the federal government or the United Kingdom.
As a theoretical concern, the lineage of secession in Western legal theory can be traced to the Glorious Revolution of 1688 in England, which established the principle that the sovereign people, in extraordinary circumstances, could go outside formal constitutional procedures and depose tyrants. English scholar William Blackstone endorsed this principle. Furthermore, the US Declaration of Independence is an example of the desire to effect revolutionary change and overthrow a government: Britain’s oppression of the American colonists gave rise to a claimed inherent right to ‘alter or to abolish’ existing structures.
Previous work has produced near unanimity holding against the legality of secession, at least via unilateral state legislative action, however there is divergence in reasoning as to why it would be unconstitutional. John Quick and Robert Garran in The annotated constitution of the Australian Commonwealth have suggested the preamble to the Constitution bars secession because the phrase ‘indissoluble Federal Commonwealth’ implies a permanent union. Another school of thought expressed by William Moore finds that secession is ruled out by the covering clauses, that is, sections one to nine of the Constitution. Gregory Craven reopened the question in 1985, albeit finding that that unilateral secession was not permitted by the provisions of the Australian Constitution.
Andrew Norton's support for the budget's changes to higher education repayment thresholds (Age Online, 10/5) makes no sense for those who have received little or no benefit from their studies.
Nobody is entitled to free money from taxpayers. However, it undermines fairness to penalise, for example, unemployed law graduates who cannot get a job because the government – in association with legal professional bodies – do their best to minimise competition in the industry. (For example, by setting up barriers to registration as a lawyer, requiring extensive formal study when there are flexible and cheaper internship-based options to convey knowledge.) At the same time, MPs and bureaucrats enjoy luxurious perks and pensions.
Why not go after the most marginalised in society last, after the elites have had their generous salaries cut?
(Published in The Age, letters to the editor, 12 May 2017)
An additional barrier to employment in the legal profession is the subjective system of "character tests" regulated by the Victorian Board of Legal Admissions (Letters, 6/12). The funny thing is that the character test doesn't seem to always work. Many lawyers that I've interacted with find it difficult to be honest when it comes to fees – inflating billed hours is a common trick. There's no better proof than the hundreds of disciplinary cases lodged against lawyers across Australia.
I would urge politicians to abolish the character test – not just for law, but for all professions. This would encourage competition and bring down prices for consumers of these services. Bad character can instead be sorted out by consumer protection organisations where customers can rate individual lawyers just as they rate cars or hotels.
(Published in The Age, letters to the editor, 7 December 2016)
In the 21st century, the idea of federalism seems quaint and somewhat naive. Since 1920, the High Court has consistently handed down judgments that grant the federal government plenary power. Any notion of the States having powers that are beyond the Commonwealth’s grasp has been summarily dismissed. Not surprisingly, the noble intention of the founders to put in place a system where the federal government deals only with national matters such as defence, interstate commerce etc. and state governments are responsible for education, health and other local issues, has not been achieved in practice. There is not much left of federalism in the Australian Constitution.
Professor Craven documents the High Court’s centralising agenda in his book Conversations with the Constitution: Not Just a Piece of Paper. Reversing the decline of federalism, according to Craven, involves three steps. First, the states must have the ability to initiate referenda. The Commonwealth’s monopoly over the initiation of referendums has led to a series of pro-federal government proposals. Allowing states to put forward their ideas would present Australians a more balanced range of choices. Next, the federal government ought to obtain the agreement of at least three states before making a High Court appointment. Craven objects that the current system is biased:
By providing that the commonwealth executive should appoint the justices, the founders ensured that the umpires of the national game of constitutional football would be chosen by the captain of one of the competing teams, and would display a corresponding degree of neutrality (p.79).
Greater state input makes it more likely that judges in favour of restraining the federal government will be appointed.
Finally, the Senate should be transformed into a genuine ‘states house’. Senators should be selected by their respective state parliaments rather than being directly elected. Senators would then represent the party interests of Victoria, Tasmania, etc. but not the interests of the federal parliamentary parties.
If these changes were implemented, there would undoubtedly be a re-working of the relationship between the Commonwealth and the States. However, most of Craven’s proposals require amendment of the Constitution via section 128, an exceedingly difficult process. Are there more practical means of restraining the federal government? Indeed there are. Missing from Craven’s analysis are two concepts related to federalism that could prove useful in restoring the Federal-State balance: namely, secession and nullification.
Secession is self-explanatory: it is the severing of ties from a larger political entity. In their Virginia and Kentucky Resolutions, Thomas Jefferson and James Madison (perhaps unintentionally) laid the groundwork for a theory of federalism that allows for genuine participation by the States in interpreting the Constitution. They posed a simple question: can one be in favour of states’ rights while at the same time denying them the means to enforce those rights? The answer, according to the two statesmen, is ‘no’. If states are to realistically enforce their constitutional rights, they will need to be able to wield the threat of secession when the federal government oversteps its bounds. Although Craven comes down in favour of federalism, he has elsewhere written against secession, apparently not seeing any inconsistency in supporting one but opposing the other! The NSW Legislative Council once advocated a right of secession, but Craven denounces its view as ‘wanton destruction’ as compared to the ‘constructive criticism’ of those states who accepted Commonwealth supremacy.
The theory of nullification, unlike secession, does not involve the complete severance of all bonds tying a state to the central government. Rather, nullification is deployed on a case-by-case basis to render void specific federal laws that affect a particular state. It is based on the principle that the highest federal court, itself an organ of the central government, should not wield a monopoly on constitutional interpretation. Constitutional interpretation is the inherent right of the people of each state – acting through their representatives – and cannot be the exclusive domain of the High Court. Examples of nullification are rampant in America, and include the widespread defiance of federal anti-marijuana laws by socially liberal states such as California.
The advantage of secession and nullification from a practical point of view is that they require majority support only in the state affected by federal oppression. Unlike constitutional amendment through section 128, which calls for a majority of Australian states as well as a majority of the Australian people, secession and nullification can be implemented peacefully through plebiscite or by a vote of the State parliament. Were these ideas to take root among the Australian public, they would be an effective means of limiting the federal government’s hegemony.
But if constitutional amendment is desired, then another idea, confederalism, would place the states in a powerful position vis-à-vis the federal government. Confederalism is a bulwark of states’ rights since the central government is dependent upon the states for its continued existence.1 The thirteen American states which united under the Articles of Confederation during the 1700s typified such a relationship between centre and states. This union then dissolved and re-formed under the US Constitution because of alleged difficulties in achieving national objectives under the Article’s finance arrangements. However, an excellent study by Russell Sobel shows that no such problem existed, and that the confederal model works just as well in this respect as federalism.2
Federalism, confederalism, secession and nullification are inextricably linked. Any discussion about how to reform federalism would benefit from consideration of all of its dimensions, and this Craven’s work fails to do. The notion of an Australian state seceding, or nullifying laws it declares unconstitutional, is not unusual once one considers that Australia – in effect – carried out a peaceful secession from the British Empire when it became an independent nation. Secession also became a major issue in the 1930s when Western Australians by a two-thirds majority indicated that they wanted to leave the Commonwealth. Unfortunately, the Australian Government refused to honour the popular result and permit WA to secede. So these ideas are not new in Australian history, and have the added advantage of allowing for a potent check upon the federal government.
 A confederal model would live up to the hopeful words of Holder, a South Australian delegate to the constitutional conventions, who said: ‘I do not want that the States should be dependent for their existence on the Commonwealth. If there must be any dependency, there would be less danger in making the Commonwealth dependent on the States’. Convention Debates, Adelaide, 1897, p. 155.
 Russell Sobel, ‘In defence of the Articles of Confederation and the contribution mechanism as a means of government finance: A general comment on the literature’, Public Choice, No. 99, 1999, pp. 347-356.
The address of the people of South Carolina, assembled in convention, to the people of the slaveholding states of the United States
It is seventy-three years since the Union between the United States was made by the Constitution of the United States. During this time, their advance in wealth, prosperity and power has been with scarcely a parallel in the history of the world. The great object of their Union was defence against external aggression; which object is now attained, from their mere progress in power. Thirty-one millions of people, with a commerce and navigation which explore every sea, and with agricultural productions which are necessary to every civilized people, command the friendship of the world. But unfortunately, our internal peace has not grown with our external prosperity. Discontent and contention have moved in the bosom of the Confederacy for the last thirty-five years. During this time, South Carolina has twice called her people together in solemn Convention, to take into consideration the aggressions and unconstitutional wrongs perpetrated by the people of the North on the people of the South. These wrongs were submitted to by the people of the South, under the hope and expectation that they would be final. But such hope and expectation have proved to be vain. Instead of producing forbearance, our acquiescence has only instigated to new forms of aggression and outrage; and South Carolina, having again assembled her people in Convention, has this day dissolved her connection with the States constituting the United States.
The one great evil, from which all other evils have flowed, is the overthrow of the Constitution of the United States. The Government of the United States is no longer the Government of Confederated Republics, but of a consolidated Democracy. It is no longer a free government, but a despotism. It is, in fact, such a Government as Great Britain attempted to set over our fathers; and which was resisted and defeated by a seven years’ struggle for independence.
The Revolution of 1776 turned upon one great principle, self-government – and self-taxation, the criterion of self-government. Where the interests of two people united together under one Government, are different, each must have the power to protect its interests by the organization of the Government, or they cannot be free. The interests of Great Britain and of the Colonies were different and antagonistic. Great Britain was desirous of carrying out the policy of all nations towards their Colonies, of making them tributary to her wealth and power. She had vast and complicated relations with the whole world. Her policy towards her North American Colonies was to identify them with her in all these complicated relations; and to make them bear, in common with the rest of the Empire, the full burden of her obligations and necessities. She had a vast public debt; she had an European policy and an Asiatic policy, which had occasioned the accumulation of her public debt; and which kept her in continual wars. The North American Colonies saw their interests, political and commercial, sacrificed by such a policy. Their interests required that they should not be identified with the burdens and wars of the mother country. They had been settled under charters, which gave them self-government; at least so far as their property was concerned. They had taxed themselves, and had never been taxed by the Government of Great Britain. To make them a part of a consolidated Empire, the Parliament of Great Britain determined to assume the power of legislating for the Colonies in all cases whatsoever. Our ancestors resisted the pretension. They refused to be a part of the consolidated Government of Great Britain.
The Southern States now stand exactly in the same position towards the Northern States that the Colonies did towards Great Britain. The Northern States, having the majority in Congress, claim the same power of omnipotence in legislation as the British Parliament. "The General Welfare," is the only limit to the legislation of either; and the majority in Congress, as in the British Parliament, are the sole judges of the expediency of the legislation this "General Welfare" requires. Thus, the Government of the United States has become a consolidated Government; and the people of the Southern States are compelled to meet the very despotism their fathers threw off in the Revolution of 1776.
The United States Constitution currently in force, when compared to the Confederate Constitutions (provisional and final) used by the Southern Confederacy between 1861-1865, comes out as the less libertarian document. The Confederate Constitution was superior because:
As we all know from shows like Crime Scene Investigation, the practice of criminal law has been glamorised. There are good guys, bad guys and shades of grey. The work can exciting and sometimes dangerous (there have been reports of clients attacking their lawyers).
Crime is a persistent phenomenon and shows no signs of abating. The moral quandaries of defence work are also ongoing. How should society judge a lawyer who will defend someone accused of heinous crimes? What about when their client actually pleads guilty and confesses but the lawyer helps them get a lenient sentence through their superior presentation skills?
Opinion polls consistently show lawyers ranking relatively low in the public eye. Roy Morgan’s survey of the public’s image of professions shows lawyers coming in behind nurses, doctors, pharmacists and even ministers of religion (who have taken a beating in recent years due to the ongoing revelation of child abuse claims).
Lawyers have ethical obligations enshrined in the Legal Profession Act 2004. The Law Institute of Victoria also publishes guidelines on topics ranging from conflict of interest to the ethical use of social media.
Recently I spoke to criminal lawyer Tony Danos about what it’s like in a career that involves interacting with a range of diverse clientele, many of whom may have a personal background that includes poverty, mental illness and prior crimes of a significant nature.
Danos sees the ethical quandaries of practicing criminal law in terms of his duty to clients to represent their interests fearlessly while balancing his obligations to the court of professional candour and honesty. Danos can’t mislead the court but he can present the strongest possible case for his client within the rules.
Given that he’s been practicing since the 1980s, Danos says he’s used to the rough and tumble personalities and difficult emotional issues frequently encountered in his work. One of his most difficult cases was Tony Angel, who was charged with culpable driving. Angel drove through a train crossing and became involved in a collision that killed his wife and daughter. One would think that the parents of Angel’s deceased wife would hate him, yet this was not the case. The parents of Angel’s deceased wife stood by Danos’ client at court suggesting there was no clear ‘bad guy’ in this case despite Angel being charged by police.
How does he justify acting for morally reprehensible people? The answer is that everyone deserves a fair trial regardless of the crime they are accused of. “At the end of the day guilt is something established by a court and it’s not for me to pre-judge someone" he says. "Everyone deserves procedural fairness and a right to be heard.”
Even those criminals that plead guilty sometimes have mitigating circumstances that deserve court attention. Child abusers have sometimes been abused themselves. Husband killers might be wives who have been physically and emotionally assaulted over a period of many years and finally snap. This doesn’t make their actions justified but Danos agrees that it’s his job to elicit empathy for the circumstances of his client and find something good about them to convey to a judge.
This might seem strange for those who have never come face-to-face with the criminal law and have led a life free of sin, however consider the following: some of the world’s greatest statesmen have defended people that they could ordinarily have expected to dislike very much. There are some things in life that are worth fighting for and a fair trial is one of them.
Thus, John Adams – who would go on to become the second president of the United States – defended the British soldiers charged with the Boston Massacre despite being an outspoken supporter of the American independence struggle against British rule. Six of the soldiers were acquitted and two were convicted of the lesser charge of manslaughter. At a time when the soldiers had struggled to find someone willing to represent them, Adams stepped up to the plate.
Consider also the situation when someone technically breaks the law, but is justified in their actions. Mahatma Gandhi broke several British laws during his civil disobedience actions but was – in hindsight – undoubtedly morally justified in doing so due to the level of oppression exercised by British against the Indian people.
It’s true that there’s real evil in the world. There are serial killers who are beyond redemption and have no mitigating circumstances. How can it be said that lawyers ought to defend such people? And perhaps even help them walk free on a technicality? Simply put, our justice system is premised on the assumption that it’s better to let 100 guilty people walk free than put 1 innocent person in jail.
You never know when you’ll make a mistake because of whatever you were going through at that stage in your life. And that’s when you’ll need to call a criminal lawyer for competent and effective legal representation.
If we don’t allow free speech for the worst members of our society, then such ‘free speech’ doesn’t really mean much.
A recent article in Indian Link by Matt Kean (the Member for Hornsby) argues that section 18C of the Racial Discrimination Act should not be repealed despite concerns over its suppression of Australians’ freedom of political communication. That section makes it unlawful to “offend, insult, humiliate or intimidate another person or a group of people” where “the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group”.
In defending section 18C, Kean claims that freedom of speech is not absolute, citing as an example the law against defamation which places limits on the ability to make false statements.
Kean thinks that liberal democracy will operate just fine with section 18C continuing to remain in effect: “As a society, we recognise that these restrictions do not hurt our democracy or way of life. Indeed, we understand that they are necessary to maintain it. And laws against hate speech are no less necessary, because racism and bigotry tear at the heart of our social fabric”.
Although Kean writes in a general way about how section 18C will supposedly maintain a freedom-loving society (albeit free of outward racism), he omits any reference to the actual operation of the provision and how critics have shown it has suppressed reasonable public discourse. Besides, his example of defamation laws is exactly the opposite of the truth: defamation laws are probably a greater restriction on legitimate speech than 18C.
In theory it sounds nice to pass a law against racist speech. But what is racism anyway? Racism is more than just making politically incorrect comments that are potentially offensive to some ethnic groups keen to avoid criticism. It should require something more – for example, physically excluding someone from public property or firing a public employee due to race.
Yet section 18C has been used to suppress merely controversial comments rather than explicit racism involving exclusion from public property. One of the best examples of how section 18C has been abused is the Andrew Bolt case which was a classic instance of the Racial Discrimination Act being used to suppress legitimate opinions. Bolt wrote a controversial column criticising the idea that aboriginal people should receive special treatment that other Australians don’t receive. He made a fair point since the rule of law requires everyone to be treated the same.
Bolt says he’s not a racist. He didn’t display outward signs of racism that would have justified him being associated with bigotry. All he did was his job: as a newspaper columnist, it’s his job to provoke thought. So why was Bolt found liable under section 18C?
Defamation laws are even worse. The idea that defamation laws are a good idea is an unthinking response that assumes the status quo is just. Look into it and the only reasonable conclusion is that defamation laws are frequently used by the rich and powerful to silence their less well funded and legally astute opponents. Brian Martin of the University of Wollongong has shown how defamation laws have been used to protect corrupt politicians.
Defamation laws and hate speech laws are founded on the wrong assumption that you own what other people think about you. As Murray Rothbard explains in The Ethics of Liberty however, in a free society everyone owns themselves and nobody should have the power to become the ‘thought-police’. “We can, of course, readily concede the gross immorality of spreading false libels about another person”, he explains. “But we must, nevertheless, maintain the legal right of anyone to do so.”
Certainly, there are exceptions. You can’t be a racist if that racism includes planning acts of violence against ethnic groups (as did the Ku Klux Clan in the United States). But that’s already covered by existing criminal laws and doesn’t require the superfluous civil liability of 18C.
All who purport to favour free speech would do well to pay attention to the American founding fathers that specifically included a constitutional guarantee of free speech in their Constitution to prevent do-gooders deciding what’s acceptable when discussing social issues. Unfortunately in Australia we don’t have as strong a constitutional protection of free speech and so one can’t criticize our rulers or other residents easily, as evidenced by the fact that several politicians and judges have brought suit for defamation.
The best way to suppress ill-considered views is to argue against them in public forums, and to have privately funded bodies set up to fact-check claims. Bigots should be shunned from the popular social groups and non-violent measures such as boycotting their products should be taken to send them a message that their views are unacceptable.
Stopping racism and bigotry does not need 18C. There are many other ways to combat these evils without giving judges and politicians even more power than they already have.
A different version of this article appeared in Indian Link newspaper (August 6, 2014).
The purpose of this dissertation is to examine ‘confederal’ forms of governance, where sovereign states unite in a fashion that legally supports them as masters of their own constitutional domain of powers, and in particular to evaluate the operation of the Articles of Confederation (1781-1789) and the Constitution of the Confederate States (1862-1865).
Confederalism is an institutional configuration that is alien to most economically advanced democracies in the world today. More common is the highly centralised unitary-state style federalism found in Australia, India and to a lesser extent the US. Perhaps only Switzerland retains some semblance of decentralization with its canton system, a system that is nevertheless more centralised than the Old Swiss Confederation that existed between 1291 and 1798.
Part of the reason for this diminished interest in confederalism is that The Federalist has informed the views of political scientists in the present day when it comes to the evaluating the utility of confederations; yet many of the basic assumptions put forward by the authors (especially Alexander Hamilton) against decentralised forms of governance should be considered in combination with the responses contained in the ‘Anti-Federalist Papers’ (authored by the likes of George Clinton, Patrick Henry and possibly Robert Yates). From the anti-Federalists we can see that, contrary to the polemic of The Federalist, confederal models are worth learning from and implementing in a variety of situations.
Historically, confederalism - despite admitted challenges - nevertheless allowed the 13 original colonies of the US to defeat Britain in the American Revolutionary War. The Articles under which the colonies united would have prevented a national government from infringing upon the authority of the states, while still providing for mutual defense against foreign enemies. Congress under the Articles was effectively dependent on the goodwill of the states due to the system of quota payments whereby Congress asked for funds and the states then provided the requested funds. As stated in section 8, the machinery of state – rather than national – governance was to be used to raise taxes.
And the Confederate Constitution, had it been allowed to operate, would probably have rectified some of the problems with centralised interpretations of the US Constitution. In the Confederate Constitution the ‘general welfare’ clause that has been a prime source of mischief in federal government power in the United States was eliminated (as well, it limited the commerce clause). The Southern constitution also constrained the federal government's ability to interfere with international trade by laying tariffs on imports. And in certain situations, it required that Congress raise a two-thirds majority to pass spending bills. Thus the Confederate Constitution, while superficially identical to the US Constitution, contains several important differences that make it a useful case study for scholars interested in investigating the veracity of claims made about confederacies.