Introduction                                                                                                                          

The issue that lurks behind this essay question is: what can be done about the failing states of the Pacific? These nations, for many and varied reasons are failing economically, socially and politically. Subsequently, the question is: are these nations in need of constitutional reform to address these problems, and as the dominant power of the South Pacific should Australia feature in the future governing structures of these nations?

In this essay, I will examine and evaluate the options for reform of the governing structures of Pacific Island Nations (“PIN”) outlined in the question. Following this, I will put forward an alternative approach to address the problems of the Pacific.

The Compact Option                                                                                                           

One option to address the problems of PIN is a governmental system that is analogous to Puerto Rico.

Through a compact, Puerto Rico is in “free association’ with the United States (“US”). A simple analysis of the compact would be that Puerto Rico maintains autonomy for internal governance, while the US is responsible for its defence and foreign affairs. Similar arrangements exist in the Cook Islands Territory and Niue, which enjoy internal self-government, while New Zealand retains responsibility for their foreign affairs and defence.[1] Therefore, a compact between PIN and Australia for the provision of defence and diplomatic representations would not be without precedent in the region.

However, the relationship between the US and Puerto Rico within the compact is complex. The compact is defined as being, “…a mutually binding agreement legally unalterable except by mutual consent.”[2] Yet, the nature of the agreement is somewhat unclear. Interpretations of the relationship range from that of, “sovereign co-equals… to that of [Puerto Rico] being war booty, property or a colony of the United States.”[3] However, it is clear that the compact was endorsed by Puerto Ricans through democratic plebiscite. Assumedly, PIN would also require such endorsement of any analogous compact. A will within PIN for such a relationship does not appear glaring. Moreover, it is unclear as to what Australia would be required to do in order to adopt the compact. The relationship with Puerto Rico is not viewed as treaty, as it was not approved as such by the US Senate.[4] Therefore, to adopt a compact Australia may only require enabling legislation by Parliament, under the auspices of the external relations power of the Australian Constitution in s 51(xxix) or perhaps s 51 (xxx), which relates to the Commonwealth’s relations with the “islands of the Pacific”.  Nonetheless a political will for this course of action also seems lacking.

It is clear that Puerto Rico is not a state of the US. This gives rise to the view that Puerto Ricans are second class citizens, enjoying fewer rights than other US citizens.[5]  It is thought that, “The fundamental weakness of Puerto Rico is that it is not a constituency.”[6] That is, representation of Puerto Rico in the US Congress is limited to one ‘Resident Commissioner’ who cannot vote in Congress.[7]  Moreover, Puerto Rico is argued to be poorly represented by Congress, in that, “For the vast majority of [US] politicians, the island is a remote concern that fits uncomfortably into the American constitutional system and cost[s]… a great deal of money.”[8] This is a situation that could well be mirrored in Australia. The lack of representation is a fundamental weakness of the Puerto Rican model.

In addition, a common market exists between the US and Puerto Rico, which comprises of no tariffs, common monetary systems and the free movement of labour between the two.[9] Likewise, the US provides social security to Puerto Ricans, even though they are exempt from most federal taxes.[10] Given the reliance on federal taxation in Australia, such an approach is problematic. If Australia was to provide welfare payments, along with other services, it would therefore do so without taxation from PIN. On the issue of welfare payments or pensions to PIN, such payments, if on par with those made to Australians, may act as a disincentive to citizens of PIN to work, given the comparative purchasing power of these payments.

Moreover, Puerto Rico decided on entry into the compact while more-or-less a colony of the US, and by entering into the compact gained greater autonomy. By contrast PIN, having tasted independence, would be required to take a step backwards and trade away some of their power, independence and sovereignty to Australia. Little motivation seems evident for such a trade off. That said, the compact between the US and Puerto Rico is seen as a, “…compromise which embodies many of the benefits of statehood without the dangers of political and cultural assimilation, and… a high degree of local autonomy… without the loss of the economic and military security.”[11] Therefore, under this option PIN could still fiercely protect their culture and identity but enjoy the comfort of a well resourced Australia.

The State Option                                                                                                                  

The other option put forward in the essay question, is the inclusion of PIN as states of Australia. The Parliament of Australia can admit new states, and impose any such conditions as it sees fit on them.[12] However, the will for the inclusion of new states into the Commonwealth does not appear evident in either PIN or Australia. In the event that Australian did seek to include PIN as states, the respective PIN would clearly have to agree to such, most likely through a ballot. Such as situation appears far-fetched considering that in PIN, “…the spirit of nationalism is alive and well.”[13]

Nonetheless, the inclusion of PIN into the Federation could provide benefits to the respective PIN. Federalism, allows for decentralisation of power and thus allows for local and national participation in decision making, while also being a means of preserving the rights and preferences of local communities.[14] As such, PIN could be Australian citizens, but also maintain their respective cultural identities. Moreover, federalism creates the concept of dual-citizenship. It is argued that: “Federalism preserves… States as small democratic polities and establishes a system of dual citizenship or double democracy.”[15] Therefore, PIN could retain their citizenship of their respective nations, while also being Australians. As Dicey pointed out, those seeking to be part of a federation “…must desire Union, and not unity.”[16] In practice we can see Australian states of less populous protect the rights of people outside of the powerful ‘Melbourne-Sydney-Canberra triangle’.[17] State parochialism is notorious in states such as Western Australia, Queensland and South Australia, and there is no reason why new states could not similarly be so. This is also evidenced internationally with Canadian Provinces preserving French as their language of choice.

Yet, it would appear that the detractions of PIN becoming states of Australia may far outweigh the benefits. In the similar debate that rages in Puerto Rico, it is argued that becoming a state would be, “tantamount to national suicide” that could result in the island nation being devoured by the US, losing its national and cultural identities.[18] Such could well be the feeling and reality for PIN. In Australia, the power of the Federal government has grown to significantly dominate the Australian Federation. Notably, the High Court’s decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd[19] in 1920 laid the foundations for today’s centralisation, with the court taking an expansive view of Commonwealth power.[20] Since this time, there has been a steady concentration of power in the Commonwealth.

The Uniform Tax Cases and the GST reforms, have resulted in an, “inexorable increase in the States’ financial dependence [on the Commonwealth] and…centralisation of federal revenue raising capacity.”[21] The Commonwealth has thus derived much power outside of its legislative control under the Constitution by way of the High Court’s interpretation of s. 96 of the Constitution. This has seen extensive use by the Commonwealth of highly contingent tied grants. It has been pointed out that, “States are not legally compelled to accept grants of financial assistance, but… they may be politically and economically compelled to do so.”[22] Furthermore, decisions of the High Court in relation to external powers under s. 51 (xxix) of the Constitution have broadened immensely the powers available to the Commonwealth to legislate in areas previously the purview of the states. Scholars contend that this power theoretically, “…could be the vehicle through which an activist Commonwealth Parliament could effectively destroy the federal balance of powers.”[23] Yet, more recently some commentators view the expansion of the Commonwealth’s corporations power under s. 51 (xx) of the Constitution posing the greatest threat to state power. Chris Merrit argues that the Work Choices decision gave, “...the green light for the federal government to take control of most areas of state responsibility.”[24] However, it should be noted that in spite of Commonwealth power, “...the States have largely retained the power to make laws in the areas which most directly affect peoples lives – health services and hospitals, the criminal law and the police, primary and secondary education, public transport, local government etc.”[25] Yet, the realities of the present federal balance mean that if PIN were to become states of Australia, their independence and autonomy would severely be limited by the power of Canberra.

Furthermore, PIN may simply not ‘fit’ comfortably into the Australian Federation. Dicey contended that for the formation of a federation,  one requires a, “body of countries…so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, and impress of common nationality.”[26] While PIN and Australia are neighours and have colonial histories, they are fundamentally different. They share different histories, cultures, experiences and attitudes. In fact it is said that “Few in Australia think that Australia as being a Pacific island states.”[27] Moreover the Pacific, “…perception of Australia has generally been ‘in but not of’ the region.”[28]

Evaluation of the Compact Option and the State Option                                                 

On the analysis of the above options, it is unclear if these proposed changes in constitutional structures would go to addressing the inherent problems faced by PIN. Greg Fry points out a fact often missed when discussing the post-colonial states of the Pacific, “The Westminster and presidential democratic systems adopted at independence have remained in tact; general elections have been held and governments have accepted defeat and left the government benches when they have lost at election. Peaceful succession of government has been the norm.”[29] Frankly, the issues facing PIN are not about governmental structures. They are about the way the nations are governed. The problems are social and economic. There is no doubt that if Australia had the ability to directly govern PIN, by way of a compact or as part of the Federation, then it would do much better than present PIN – it could hardly do worse. In reality, it seems remote, that Australia would be given or desire such an opportunity, with few if any PIN willing to give up their sovereignty.

Moreover, the options put forward represent neo-colonial if not outright colonial undercurrents. Australia already has the unfortunate perception of neo-colonial tendencies in the Asia-Pacific. Likewise the options put forward go against the tide of Australian policy toward the protection of PIN sovereignty. Australia supported decolonisation in the Pacific and has long sought to protect and support the integrity and sovereignty of PIN.[30] Therefore, it must be asked, why should Australia now plunge itself into neo-colonial pursuits? Simply, Australia shouldn’t. Both the options presented above simply are not practical, nor palatable.

Alternate Approach                                                                                                             

However, it is not to say that Australia should not play a role in advancing, improving and developing PIN - it is in Australia’s interests to do so. Yet, this role should not be a neo-colonial master, or a powerful federal government. Australia should be a friend and mentor to PIN. But, it must be noted that the problems facing PIN are Pacific problems, and they require Pacific solutions. This means that PIN must themselves acknowledge their problems and make genuine attempts to rectify them. Meanwhile, the core of Australia’s approach to PIN should be economics.

1. An Economic Approach

PIN face severe economic challenges, however, this need not be the case. For example, due to its wealth of resources, Papua New Guinea is thought to have, “the potential to become economically self-reliant.”[31] Moreover, while some believe East Timor’s access to oil and natural gas resources will ensure the economic prosperity of the nation, Michael O’Connor warns that “It won’t unless the money is handled more effectively than has been the case elsewhere.”[32] It is clear that action must be taken now, so that these nations do not squander their economic resources, without the pay-off, as has been the Nauru experience. Therefore, Australia should actively offer itself to advise PIN on the management of such resources.

Moreover, Australia should take more of a ‘carrot’ and ‘stick’ approach to the provision of aid. PIN are dependent on aid, yet, “The nature of aid makes it part of the problem, not the solution”[33] in that it, “…entrenches a ‘handout’ mentality.”[34] Australia must work to end such a mentality, and as the largest provider of aid to PIN, it is positioned to do so. Such an approach should include more specific tied grants of aid, which are reliant on specific performance, requiring internal governance reform, or reform of PIN economies. Aid should be invested into productive economic infrastructure. Australia should seek to adopt a ‘hand up’, not a ‘hand out’ mentality in its provision of aid. This may be adopted by taking an activist approach to aid in some cases, which might involve, “…sending teachers, doctors and policemen instead of short term consultants and advisors” rather than simply being an “offshore financier.”[35]

Australia should also promote a Pacific economic community. The impact of such economic integration would achieve a great deal of what the Compact and State Options also sought. In fact, some scholars believe that a monetary union, by common Australian currency throughout the Pacific Islands, coupled with the development of migrant labour (particularly from PIN to Australia) would comparably have as far reaching effect as the Howard government’s policies of intervention.[36] It is contended, that due to the great deal of trade between Pacific Islands and Australia, gains from regional economic integrations would be substantial.[37]

Through economic advancement, failing PIN would be given an opportunity to lift themselves out of their present squalor and become sustainable nations into the future.

Conclusion                                                                                                                            

PIN are failing in the face of many seemingly insurmountable problems. Governing and governance are a problem in PIN. Yet, including Australia in the governmental and constitutional structures of PIN while posing many benefits, on balance, is in the interests of neither Australia nor PIN. Rather, Australia and PIN could enjoy many of the benefits of both the Compact and State Options, through an Economic Approach. While the problems of the Pacific can be viewed as Pacific problems, requiring Pacific solutions, Australia can offer valued assistance and support in an effort to ensure PIN do not become failed states.

Bibliography                                                                                                                         

1. Articles/Books/Reports

Carr, Raymond, Puerto Rico: A Colonial Experiment (1984).

Castan, Melissa and Joseph, Sarah Federal Constitutional Law: A Contemporary View (first published 2001, 2^nd ed. 2006).

Dicey, A. V. Introduction to the Study of the Law of the Constitution (1^st edition 1885, 10^th ed 1959).

Fry, Greg “Political Legitimacy and the Post-colonial State in the Pacific: Reflections on some Common Threats in the Fiji and Solomon Islands Coups” Global Change, Peace and Security 12: 3 (2006).

Galligan, Brian and Walsh, Cliff “Australian Federalism Yes or No?” in Gregory Craven (ed) Australian Federation (1992).

Henningham, Stephen The Pacific Island States: Security and Sovereignty in the Post-Cold War World (1995).

Jayaraman, T. K.; Lee, Huay-Huay and Lee, Hock-Ann “Regional Economic Integration in the Pacific: An Empirical Study” Global Economic Review 35:2 (2006).

Kawaley, Ian “Implications of Exclusive Economic Zone Management and Regional Cooperation Between South Pacific Small Midocean Island Commonwealth Territories” Ocean Development & International Law (1999) 30:4.

Manning, Mike and Windybank, Susan “Papua New Guinea on the Brink’ Issues Analysis (Centre for Independent Studies), No. 30 (12 March  2003).

Merrit, Chris, “A blow to the Constitution”  The Australian (14^th November 2006).

O’Connor, Michael “Australia and the Arc of Instability” Quadrant (November 2006).

Perusse, Roland I. The United States and Puerto Rico: Decolonization Options and Prospects (1987).

Shibuya, Eric Y. “Pacific Engaged, or Washed Away? Implications of Australia’s New Activism in Oceania” Global Change, Peace & Security (2006) 18:2.

Summers, John “Federalism and Commonwealth-State Relations” in Government Politics, Power and Policy in Australia eds. Parkin, Andrew; Summers, John and Woodward, Denis (7^th edition, 2002).

1. Case Law

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

1. Legislation

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1. Treaties

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1. Other Sources

 Australian Constitution