For first time since WWI the states are the boss

Scott Morrison is flanked by state premiers and territory leaders in Canberra for National Cabinet in December. Picture: NCA NewsWire/Gary Ramage

COVID is the virus that keeps on giving. Every day, we realise one of its spikes has locked with another part of our lives, and things will never be the same.

Most people would not use the words “federalism” and “COVID” in the same sentence. Most people would not utter “federalism” at all. But federalism grounds our entire system of government, and COVID has transformed it, possibly permanently.

Federalism is about the feds and the states. For a century, each played their assigned roles. Canberra had power and money and beat the states ragged; the states wept piteously and tried to betray each other. COVID has changed this game, like Kerry Packer changed cricket.

The states control the vast bulk of governmental apparatus that combats COVID. They run the hospitals. They command police. They have authority over public health. Their laws regulate quarantine hotels. They can lock people up.

For the first time since the central government grabbed most of their powers to wage total conflict in World War I, the states are the boss.

Sure, the feds are still the paymaster, throwing cash at everything from JobKeeper to vaccine purchase. But this time, money does not bring power. What is Canberra going to do? Deny income support to uncooperative Queensland? Refuse vaccines for obstreperous WA? That isn’t power, it’s political suicide.

So the Morrison government is reduced to funding states who express less gratitude than grudging entitlement, but reserve the right to blame Scott Morrison when anything goes wrong. And there’s nothing he can do about it.

For the states, this is a form reversal comparable to Australia beating Germany in the next soccer World Cup. For decades, premiers have been professional beggars, existing on gruel dribbled from Canberra.

Pathos breeds contempt. Neither scholars nor citizens took the states seriously. Whether they should be abolished was as popular a school debating topic as whether the books of Peter FitzSimons should be burned.

Every poll showed state politicians were the least trusted and liked in the land. Even federal pollies lapped them. Saddam Hussein would have beaten them.

But imagine the result now of a poll comparing state and federal politicians. Morrison must cringe at the very thought of being compared with Mark the Marvellous McGowan or Saint Annastacia Palaszczuk.

There are huge political implications here, probably long-term.

First, once the states have escaped from their box, it will be hard putting them back, and they will not go quietly.

Second, some states — notably NSW — have performed very creditably in difficult circumstances. Citizens will note and remember.

Third, and very worrying for Canberra, we live in an age of empathy. In a postmodern world driven by identity politics, it matters enormously how a politician displays feelings toward a crisis and its victims, whether COVID, bushfires or sexual violence.

State governments have a decisive advantage here. They are on the ground. They live in their communities. They command the response systems. No prime minister can plausibly gush sympathy like Gladys Berejiklian or grimace reassuring menace like Daniel Andrews.

Which leads to a final political reality. The old proverb that state issues do not affect federal elections almost certainly has collapsed. It is impossible to imagine voters in the next national election will not be influenced by perceptions of how parties performed around COVID in their own states. If I were a West Australian Liberal, I would be worried sick.

There are even more profound COVID implications, so profound they are effectively constitutional, rather than political. Exactly how stable do we think the Australian Federation is post-COVID, and what does stability actually mean?

We have had only one secession crisis — typically involving WA — in the 1930s. There is no doubt that secession is illegal under the Australian Constitution. We have always considered it a comic implausibility.

But it is characteristic of federations to dismiss the possibility of collapse until it actually is upon them. American politicians were still laughing at the notion when Confederate cannons started firing.

When McGowan unilaterally closed off WA for months on end, to what extent was it still part of the federation? If he had succeeded in making this arrangement permanent — which he proposed — the West would have been in the twilight between secession and federation.

Of course, McGowan only backed off because a permanent exclusion and permit system presumably would violate the Constitution’s guarantee of free trade, commerce and intercourse between the states.

One says “presumably” because in a remarkable decision, the High Court unanimously dismissed the challenge of perennial business pest Clive Palmer to McGowan’s temporary but longstanding health apartheid against the rest of Australia. It effectively decided the ban was “reasonable” in the interests of protecting the Sandgroper population as a whole.

This despite the fact the ban indiscriminately locked the WA border to millions of Australians who realistically had as little chance of catching COVID as bubonic plague. Rarely has Australia’s federal integrity as a united nation been so airily dismissed.

The other thing to emerge from COVID has been the previously disputed truth that there are real differences of character between the different states and their populations, however much we like to pretend we are a nation of clones. There is more than the 800-odd kilometres between Sydney and Melbourne.

So NSW has adopted a carefully measured approach to COVID. It protects its citizens — even against themselves — but with as little drastic interference as possible. Reliance on an excellent health administration is one reason. But you get the impression that state demographic realism is another. There is no way the anarchic descendants of convicts, ratbags and bagmen are going to allow themselves to be repeatedly locked up.

Yet sober, serious Victorians almost volunteer for incarceration as their civic duty, regardless of necessity. There is something about Victorians that makes them far more tolerant of government intrusion than their fellow Australians.

The economic implications of this difference are enormous. Sydney should march through COVID. Speaking as an ethnic Victorian, Melbourne can only hope to limp. Walking its streets, you see closed businesses, rubbish and feral skateboarders. Melbourne used to have the Paris end of Collins Street. Now it has an East Berlin CBD — before the wall came down.

All of which underlines the fundamental political message of COVID for Australia. We entered this plague a united, even over-centralised federation. We may emerge from it something notably different.

Emeritus Professor Greg Craven is a constitutional lawyer.