custom’presses the significance of history, without invoking the‘culture’of
the historical–cultural. It elevates‘fate’without insinuating‘destiny’. It sug-
gests‘path dependency’without strictly entailing‘memory’.‘Inertial’is prob-
ably the best term for capturing the phenomenon at stake, especially when
inertia is properly defined as resistance to a change in state of motion, rather
than as a state of rest; the rational response to the wrong choice of a fork in the
road may be to travel further down the path.
Might Australia be prone to be shaped by rational custom? Australia is a
thicket of constitutions, Upper Houses, judicial review, tiers of government;
all making for sunk costs and process costs. Above all, Australian Federation—
that‘last kick of the old radical colonial politics’(Waterson 1970, p. 41)—
made for sunk decisions that have imparted‘tremendous...inertia’to the
national political system’(Parker 1969, p. 62), where decisions‘continue
long after the original purpose has disappeared...rather like a fugue in
music’(Sawer 1966, p. 106). A straightforward illustration is federalfinance:
the doom of statesfinances was spelt by clauses in the Constitution of 1901
prohibiting state taxes, notwithstanding the apparent trust in the Constitu-
tion’s jerry-rigged evasions of that fate.^45 The only escape would be an extra-
legal withdrawal from Federation, but at a prohibitively high cost. Another
illustration may be in workplace relations: it is tempting to think that the
decision to allow the Commonwealth to legislate for compulsory arbitration—
admitted to the draft constitution on the third attempt, at the meretricious
entreaty of H. B. Higgins, and by a margin of twenty-two to nineteen follow-
ing the gratuitous defection of Western Australia—was deeply fateful.^46
Intended for itinerant shearers and seaman who, by the nature of their
trade, traversed states, Section 51 (xxxv) exploded in consequence, sustained
by the strength of precedent in the constitutional decisions that forced its
path; its retraction has rarely seemed worth the cost,^47 and efforts to ration-
alize it seem only to strengthen it.
Canberra as a capital may become so great that it does become rational to shift. There is a‘tipping
point’latent.
(^45) ‘When the decision was made for a uniform customs tariff and inter-state free trade, the
independence of the states was doomed’(Giblin 1949, p. 90). Giblin should have added the fact
that the decision to vest‘excise’exclusively in the federal government prevented the states from
taxing consumption. It might be retorted the US constitution has a very similar provision, yet in all
but four American states sales are taxed. It was repeated High Court decisions which have defined
‘excise 46 ’so as to remove consumption quite out of the reach of the states’taxation.
The surprise affirmative of Western Australia later prompted La Nauze (1972, p. 208) to reflect
that this provision was‘momentous for the social and political life of Australia...[and was]
inserted by the group then least concerned with the problems and tensions of industrial society 47 ’.
If not impossible. How could it come to pass that the sacred writ of the Engineers Case ever be
altered? Only through the unlikely appointment of a majority judges who will be as insouciant
about precedent as Isaac Isaacs was about the Griffith court.
William O. Coleman