Extract from interview with Petrice Judge,
Assistant Director General, Federal and Constitutional Affairs in the Ministry
of Premier and Cabinet, Western Australia.
JUDGE: Well in relation to
Federal matters we believe that there perhaps should be some changes to
the areas of responsibility that were assigned to the Commonwealth. When
the Constitution was created in 1901, certain responsibilities were assigned
to the Commonwealth and there's increasingly been what we call a leakage
of power from the States to the Commonwealth mainly under the external
affairs power. So if there were some changes proposed that would have
impact on individuals in the street because you would have the State legislating
on matters and you shouldn't have the Commonwealth coming over the top
and saying, "well you can't do that".
There's an example now that's in the front page of the news where there's
a debate over mandatory sentencing. At the heart of this is constitutional
matters because the State has legislation that it thinks is valid and
it applies to juveniles and the Commonwealth says we want you to change
that because we believe it is contrary to international obligations. The
Commonwealth is responsible for external affairs so they therefore are
threatening to introduce legislation which renders the State legislation
null and void.
CF But there's also international support for the Commonwealth in that
position. What do you think about that influence over the States? Isn't
it useful to have the Commonwealth as an extra check on State powers?
JUDGE: Well you see the Commonwealth
was created by the States. They were independent colonies in the 1890s
and they all had self-government, and so they created the Commonwealth
with powers for external affairs and overseas trade and internal trade.
But they also kept the majority of their own ability to legislate in areas
in relation to land, law and order, health, a whole range of services
to the people within the States. The Commonwealth under its external affairs
power is supposed to just promote trade and those sorts of issues for
the betterment of Australia. The thinking is, in relation to external
affairs it's extremely inappropriate that the Commonwealth be able to
come in and legislate over the top of the States in their areas of responsibility
because the Commonwealth is a signatory to over 2,000 treaties. Australia
signs up to a treaty at the rate of one a week so this is rapidly expanding
the areas over which the Commonwealth can legislate. We just believe it
strikes at the very heart of the federal compact under which Australia
was created if you have the Commonwealth increasingly intervening in the
name of international obligations.
Petrice Judge, February 2000
[Battye Library, OH3014]