The Sydney Morning Herald A federalist of convenience Date: 21/04/00 QUESTION: When is a Commonwealth override of a State or Territory law not an override? Answer: When John Howard thinks it's a good idea. The Federal Government has power to stop Internet gambling, despite a majority of States wanting it, and even though the States have power over gambling. This is because Canberra can make laws on communications, which would automatically override a State law. Howard is all for going ahead and doing it. The Federal Government also has the power to stop mandatory sentencing in the Northern Territory, because the Territory is not a State and Canberra can intervene when it likes. Howard has steadfastly refused to do so. Canberra as well has the ability to intervene against the West Australian mandatory sentencing laws, although it would have to use the more indirect external affairs power. Howard insisted yesterday there was a big difference between the mandatory sentencing issue and the Government's plan to impose - despite recalcitrant States - a one-year moratorium on new forms of interactive gambling (with a view to a permanent ban). Any comparison was "mistaken", he said. Anyway, the Commonwealth was not "overriding". In real life (as opposed to a law tutorial) Howard is making a distinction without a difference. "This is not a case where we're using an external affairs power or some kind of overarching power to prohibit something that the States normally regulate," he said. "We control communications. It's not regulated by State law. "Mandatory sentencing is something that belongs to the criminal law, which is always administered by the State. "We are not overriding, we are merely saying that we might exercise our power to control what is on the Internet." Howard is confusing process and outcome. Under section 109 of the Constitution, "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." A Commonwealth law governing the Internet would therefore prevail over any State law on gambling on the Internet. Howard separates this from "overriding" - although it might be noted that one definition of "override" in the Macquarie Dictionary is "to prevail over" - but the result is the same. A State or Territory wants to do something (license online gambling); the Commonwealth is saying "No". What makes the real differerence to Howard's attitude is not the nature of the powers and responsibilities to be used, but the issues involved, and the PM's judgment of public and (Coalition) opinion. Thus Howard was all for using the Federal power to intervene in NT affairs to strike out its euthanasia law, because he saw it as a fundamental moral issue that would set a benchmark for the nation. He was against intervention on mandatory sentencing in the NT because, despite personally believing it a bad law, he knew it had considerable public support and the Coalition was strongly against knocking it out. But with gambling, Howard believes it should be curbed and that that is what the public wants, too. He was unwilling to buy a fight with the Territory over mandatory sentencing but he's apparently quite willing to get into a huge stoush over Internet gambling. (Just to make my position clear: I personally believe that Howard is right on the gambling action, and that the euthanasia override was correct - but the mandatory sentencing law should also have been ruled out by the Federal Government.) Howard is a federalist-of-convenience. He is willing to use central power when he thinks the need arises. For example, he has never been a great States' righter on financial matters. The anti-online gambling push is strong in Cabinet, spearheaded by Howard's Methodist upbringing and Peter Costello's Baptist origins. Costello used to only half joke about the Productivity Commission inquiry into gambling being a gift to his brother, the Reverend Tim Costello. Communications Minister Richard Alston is also said to be strong on the matter. The PM, however, might be wondering how his backbench will react, after the mandatory sentencing kerfuffle. Although the moderate dissidents got the publicity, and eventually the threat by three to cross the floor forced Howard into a deal with the NT, on the other side was a majority of anti-interventionist, States righters. Will they emerge again and how strongly? Some division in Government ranks about how tough to be was revealed when the report of the Senate inquiry into online gambling was released last month. The Government majority supported tight controls on online gambling with a moratorium on new licences for a limited period until proper consumer protection was put in place. But a NSW Liberal senator, John Tierney, joined by Independent Brian Harradine, called for a much longer pause - five years - on the issuing of domestic licences after the initial moratorium. This would allow time for "a detailed social impact statement" of the effect of online gambling. The Labor members of the committee urged a strict regulatory regime but said: "The ALP does not support an outright ban of gambling on the Internet because we do not consider it to be technically feasible or necessary". When Kim Beazley's office was asked yesterday about his attitude, his spokesman faxed the Labor statement in connection with that report. The Government would have no difficulty getting its year-long moratorium through the Senate. The Democrats, who railed against the idea of online censorship, are onside over gambling. Meg Lees believes Australia has a huge gambling problem. While the Government's stance on gambling has bought a fight with the States, it is one in which Howard has some protection because States of similar complexion are split. WA, a Liberal State, gave the Federal Government qualified support. The Labor Government in NSW was the strong backer of the moratorium, while the Labor governments in Victoria and Queensland were vocal opponents. On the day, NSW was quite surprised to find itself out on a limb. It had expected there would be wider support for the pause. Yesterday, Bob Carr was declaring NSW "100 per cent behind" the Federal Government's action, while Queensland's Treasurer, David Hamill, was accusing the Feds of a "cheap publicity stunt". Howard has taken such a strong line that it will be hard for him not to go through with the Government's threat. But the Government will face more than opposition from States. There are powerful vested interests involved here. Tim Costello yesterday challenged the Victorian Premier, Steve Bracks, to tell the public whether, when Graham Richardson visited just after last year's State election, on behalf of Kerry Packer and to talk about relations with the casino, there was discussion about licensing interactive gambling. Costello points out that the State Government has acted to limit pokies - and asks how this can be reconciled with its opposition to controlling interactive gambling. Meanwhile, the Tattersalls empire is setting up a new cyber gambling operation. Guess who's mooted for a central role? None other than Andrew Peacock, newly returned from being ambassador to the United States, a job to which he was appointed by his old rival, John Howard. This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited. -- _________________________________ Truth is a pathless land. --- Krishnamurti ------------------------------------------------- ------------------------------------------------------ RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at http://www.mail-archive.com/ To unsubscribe from this list, mail [EMAIL PROTECTED], and in the body of the message, include the words: unsubscribe announce or click here mailto:[EMAIL PROTECTED]?Body=unsubscribe%20announce This posting is provided to the individual members of this group without permission from the copyright owner for purposes of criticism, comment, scholarship and research under the "fair use" provisions of the Federal copyright laws and it may not be distributed further without permission of the copyright owner, except for "fair use." RecOzNet2 is archived for members @ http://www.mail-archive.com/recoznet2%40paradigm4.com.au/
