On Regional Government

To Frank, Good Health!

Our good friend, Justice Rae Else-Mitchell, bemoaned the fact that most constitutional lawyers sideline regional government as a secondary issue, concentrating instead on National or Provincial/State systems. I imagine his eyebrows would rise were he to glance over his obituaries, which likewise barely mention his efforts in birthing the Australian Capital Territory and his subsequent close interest in that polity.

I spent a year working across the corridor from him in the old Acton Hotel. After Self Government, I headed up the remnants of the Self-Government Unit for a time in the awkward position of reporting to both Commonwealth and Territory Governments. We spent a lot of time sitting in each other's offices, working out solutions to impossible problems and steering the new state through choppy waters.

I miss the sound of his voice, his keen intellect and his laugh. Don't get me wrong: we often disagreed. And I am not sure he would approve of the subject matter of a set of lectures I am minded to prepare.

In most Federal jurisdictions, financial power was intended to remain decentralized as a bulwark against opportunism. Contrary to Constitutional safeguards and the decisions of Constitutional Courts, we are presently witnessing a spectacular increase in the centralization of fiscal power. In a climate of opportunistic decision making, we now see the emergence of Conservative/Progressive political divides that challenge the concord of civil society. As these problems seem to arise at National or Provincial/State level, Regional Government is not commonly identified as an important element in dealing with these problems. There is no demonstrable benefit for the concentration of financial power at a National level in federal systems (save to those who practice opportunistic politics). The root of current day problems lies in the short-term objective, cyclical terms, and opportunistic policies. 

Because of the concentration of fiscal power in centrist jurisdictions, Conservatives only have to be in control for a couple of days every 5-10 years to achieve most of their financial objectives. If they can organize, Progressives can achieve most policy objectives in a couple of months. 

Centralization is often promoted by those seeking equality of outcome between different elements in a Federal Union. Equalization (the meat of Else-Mitchell's concerns) of fiscal, social benefit does not flow from consolidation as, increasingly, opportunism redistributes the wealth of nations in a highly selective manner. Instead, mechanisms developed in the late 18th century provide a solid basis for general equalization. 

Despite all Federal systems providing mechanisms for further decentralization, little decentralization has occurred. 

I think there is value in examining the inherent strengths in a substantial decentralization of fiscal power when coupled with equalization mechanisms. We have plenty of historical exemplars of devolution and the problems of centralization, specifically Dublin and the free cities in pre-Great War Europe. What could have been had Dublin not been cut to the ground.

I propose to examine examples of recent examples of the creation of regional government forms. There are serious problems with existing academic analysis of regional government. I would propose to identify failure associated with naïve casts of power and demonstrate how this can lead to poverty. I would like to spend some time examining the strengths related to specific casts of power (addressing the issues of size and shape of a polity), and how those casts can generate wealth. Finally, and with little hope of making a compelling argument (for Commonwealth minds are resolutely turned against it) I would like to re-examine the constitutional requirement to establish an interstate Commission.

Too brave?



Rae Else-Mitchell CMG, QC (20 September 1914—29 June 2006) was an Australian jurist, royal commissioner, historian, legal scholar and friend. 

This is one of a series of letters (2000-2020) that explores issues from slavery, law reform, deontic logic, plague and legal theory. Some were originally included in a legal text "Lessons" (2019) prepared for teaching legal theory to legal students. Others simply address or reflect on issues of the moment.

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