Extract from interview with Sir Ronald Wilson, former Solicitor General, WA (1969-79), former Judge of the High Court (1979-89), President of the Human Rights and Equal Opportunity Commission, 1990-97.
The case I like to think started the centralist rot, if you like to call it that, was in 1935 when the High Court had to rule on the scope of Section 96 of the Constitution ... the Section that authorises grants, money grants to the States. The argument that the founders of the Constitution would have supported without question was that the Commonwealth could only make grants in relation to those matters for which it had specific legislative power in the Constitution. The founding fathers were very harsh on the Commonwealth. They saw it as merely a minimal government with authority over defence and international affairs but in those days there was only a question of maintaining embassies and things like that. That's all they thought that external affairs would cover. They insisted that the Commonwealth could only have the money it would get from Customs and Excise and it had to give three-quarters of any surplus to the States anyway. It didn't find the power in the Constitution to impose an income tax till the First World War when there was no argument - Australia needed the money. In 1935 the argument was whether the Commonwealth had unlimited power to grant money for any purpose, and the court decided it could attach conditions, grant money on condition, and that is how the Commonwealth came into the education field, for example. It has no legislative power over education. But by making grants to the States on condition that they use it for university support or whatever the quite detailed conditions, they've been able to move into areas where the Constitution never anticipated that they would go. As it has been said of that decision, it tied the States to the chariot wheels of the Commonwealth.
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