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]