How Federalism isn't Working in Australia

“Professor Brian Galligan has noted (in A Federal Republic: Australia’s Constitutional Governmental (Cambridge: Cambridge University Press, 1995) 39, 53) that federalism combines the ‘national advantages of largeness’ and the ‘local advantages of smallness’. It ‘allows public goods to be more finely tailored to popular preferences’. On this view, it enhances democracy by allowing increased democratic participation in politics. As a statement about Australia’s it is inaccurate.”

Introduction

This may be true of other Federal systems which are running effectively in Canada for example. However the validity of Australia’s model of federalism has come under constant scrutiny, because it fails to conform to the conventional federal model. As a statement about Australia’s it is extremely inaccurate as this piece will help show how Federalism is not working effectively in Australia at this current moment mainly due to the fact that it’s federal system foundations stem from the American model, and place a heavy emphasis on co-operative federalism.

Federalism within Australia does not bring the advantages Professor Galligan has suggested, if anything having three tiers of government within Australia only hinders in the promotion of politic participation amongst its citizens this in return affects whether citizens feel a sense of living in a democratic Country.

Disadvantages of Federalism within Australia

There are problem a number of problems associated with the three tier government which is currently present in Australia in 2007. It can lead to the duplication of governments and overlapping or contradictory policies in different parts of the country. The Commonwealth has used s 109 of the Constitution to help in its ultimate gain of power. [1] It also leads to inequality between States and leads to an unhealthy completion and rivalry between them. The Commonwealth has the power to manipulate and hold the States to ransom for funds thanks to s 96 of the Constitution. This only leads to an unhealthy competition and rivalry between States. Federalism in Australia has actually been negative as it hinders and neglects of popular preference not being met in areas such as education and public transport. [2]

Ronald Watts gave a simpler, but nevertheless a valid observation of the purpose of federalism. Watts saw federalism as an “effort to encourage a balance between the pressures for unity and diversity”. [3]

It seems there can be many underlying factors and it appears that the intentions of the federal system, is not only to enhance democratic participation, but to also unite divergent communities, so as to receive the benefits of a national country.

The transfer of powers given by the decisions of the High Court

When the Commonwealth holds the majority of the power it brings various problems for the States and their citizens. The major disadvantage is the power which is invested in the High Court of Australia when interpreting the Constitution in accordance with a Federal system of government. Problems have risen over the years relating to the High Court’s interpretation of the Constitution which favours of the Commonwealth government. States and Territories feel that its citizen’s ideas and needs are not being met and that even if the take the matters to court there is a large chances are that the High Court will rule in favour of the Commonwealth.

This is especially evident with matters which relate to the amount of power is invested in the Commonwealth in matters which relate to external affairs. A large majority of the High Court rulings relate to a number of sub sections of the s 51 of the Constitution. Section 51 (xx) of the constitution relates to foreign cooperation, and trading or financial corporations which are formed within the limits of the Commonwealth and the powers the Parliament have over the States. [4]

The way in which the Commonwealth over use their powers is in the case of Koowarta v Bjelke-Petersen [5] relates to external affairs and legislation enacting international convention. On the 30th of September 1975 Australia ratified the international convention on the removal and elimination of all forms of Racial Discrimination. As a result the Commonwealth enacted the Racial Discrimination Act 1975 (Cth). [6]

Then in 1976 the Aboriginal Development Commission entered into an agreement with the lessees of Crown land in Queensland. They wanted to purchase the leasehold on behalf of the Winychanam people. The Minister for Lands disapproved the transfer of lease. As a result Koowarta who was a member of the ‘Winychanam People’ began proceedings against Premier Bjelke-Petersen of Queensland under the Racial Discrimination Act.

The question which the High Court of Australia had to decided was whether or not the powers in s 51 (xxix) of the Constitution enabled the Commonwealth government to enact laws for the execution of the Convention. [7] It was held that the Racial Discrimination Act was a valid exercise of the external affairs power. Stephen J put forth that, there exists a quite precise treaty obligation, on a subject of major importance in international relationships, which is called for the domestic implementation within Australia.

Another High Court decision which relates to s 51 of the Constitution is the case of the Commonwealth v Tasmania (The Tasmanian Dams Cases). [8] The question here was whether the external affairs power could be exercised by the Commonwealth to prevent the construction of the dam. Australia as a Country had approved the Convention for the Protection of the World Cultural and Natural Heritage in 1974, as well as the National Parks and Wildlife Act 1975 (Cth). [9] The Convention stated that each nation recognised the duty to identify, conserve and protect the cultural and natural heritage which is situated within its territory. The Convention continued to read:

‘Such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to cooperate.’ [10]

On 26th of May 1983 the Governor- General proclaimed that the Act applied to the area in which the dam was meant to be built. So the Commonwealth started proceedings to seek a declaration that the construction of the Franklin Dam was unlawful. The Tasmanian government cross-claimed this and they claimed declarations that the Commonwealth Acts and Regulations were invalid.

The court held that the National Parks and Wildlife Act 1975 [11] and the World Heritage Properties Conservation Act 1983, [12] were indeed authorised by s 51 (xxix) of the Constitution as an International treaty was sufficient to attract the power. Deane J continued to put forth that the corporations power in s 51 (xx) helped extend to the authorisation given to the Commonwealth Parliament regarding the regulation of the construction of the dam, seeing the Hydro-Electric Commission was in fact a trading corporation. [13]

In other words for the Commonwealth government to own these powers, it shall be at the expense of the States. This within itself is evidence that the Government in Australia is becoming more centralised and for States which have matters which relate to s 51 of the Constitution majority of times the High Court vests the ultimate power in the hands of the Commonwealth.

Australian federalism

The self-governing British colonies agreed to unite, which culminated in the Australian federal constitution of 1901. The federal model adopted was unconventional in the sense that is appeared to combine two inherently different principles. It drew from the American model of federalism; the notion of de-centralization, whilst ensuring the national government was still able to appropriately function. From the English monarchical government, it encapsulated the notions of parliamentary responsible government.

The principle ideas drawn from the American model are that of a relatively de-centralized government. This is achieved through various avenues. [14] First, distributing powers so that there is a limited list of federal exclusive powers, a substantial list of concurrent powers with the unspecified remaining powers being left to the state governments. [15] Secondly, forming a judicial authority, in the form of the High Court of Australia, so as to adjudicate discrepancies between the state and federal institutions, and to determine if one is acting outside of their constitutional authority. Thirdly, the principle that federal laws override any state laws, which can be construed as being inconsistent with the federal laws. This notion came to the fore in the Tasmania Dams Case. [16] This case, while dealing with many more issues, such as the scope of the “external affairs” provision in the Constitution, [17] touched on the issues of federal law dominance. The proposition by the Tasmanian government to construct a hydro-electric dam on the Franklin River was struck down, since it conflicted with multiple federal acts prohibiting the clearing, excavation and other activities within the Tasmania Wilderness World heritage area. [18] Finally, these features were to be integrated into a rigid constitutional framework, while Australia didn’t adopt a Bill of Rights, constitutions for the both at a state and federal level were enacted.

Parliamentary responsible government originating from the English monarchical style of government was drawn upon by the founders of the Australian federal model, and consequently utilized. The main principles behind responsible government are that the executive is accountable to parliament, and subsequently to the people. It vests full sovereignty into party that has been elected into power, and assumes that they will act in the best interests of the country, since that is are where their power originates from. It emphasises the power of the majority since this is inevitably those in power are accountable to. There are a number of regulations in which the executive must abide to, including the constitutional rule that “no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representative”. [19] For the purposes of this discussion, these do not need to be elaborated further. [20]

Co-operative federalism can now be seen as an integral part of the Australian federal system. It has been hailed by judges of the High Court as “a positive objective of the Constitution”. [21] Co-operative federalism is a term used to describe the phenomenon in which state and federal governments work together to achieve a common objective. It’s commonly employed in situations where the federal government doesn’t have the jurisdiction to legislate in a particular area. [22] There are numerous example of which co-operative federalism has been used as a means of attaining this common goal, most notably the case of R v Duncan; Ex parte Australian Iron and Steel Pty Ltd. [23] In this case the High Court deemed the formation of a Coal Industry Tribunal, invested with both Commonwealth and State power as constitutionally valid. It was explicitly stated that “nowhere [in the constitution] forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other.” [24] However, due to the current climate of the High Court, it seems that there is less of an inclination to uphold co-operative federalism as constitutionally valid. In the case of Re Wakim; Ex parte McNally (Cross-vesting Case) [25] the High Court denied the federal court the ability to be vested in State jurisdiction, stating, “co-operative federalism is not a constitutional term. It is a political slogan…” [26]

The federation of Australia seamlessly incorporates these features into the one hybrid model. Co-operative federalism, while posing threats of the possibility of forced coercion, continues to be an essential feature of the Australian model. The American model has been strictly followed, except in regards to the presidency model. The English principle of parliamentary responsible government offers a further avenue in strengthening this federal model, although has been in the ascendancy recently.

Is the Australian model federal in nature?

It has been asserted that the Australian federal model is so unconventional; that it is unable to fulfil the conditions discussed, and therefore is not federal in nature. These arguments hold a certain degree of merit, but on the whole, merely point out the instances in which the federal system of Australia is unique, and does not point out its failures as a system.

The notion that the “local advantages of smallness” are no longer as predominant as they were then the federal model was drafted finds its basis in two claims. Firstly, that with such increased trade relations between the states; the “national advantages or largeness” are no longer present. States no longer find themselves in such fierce competition with each other, which opens up the possibility of continual co-operation between states. Yet it is the instillation of a federal system of government, which has brought about such turnabout in co-operation between states. The collection and subsequent redistribution of taxes and a nation economy, allow states to be less apprehensive in collaborating with the other states. Secondly, it’s argued that increasing centralization renders federalism obsolete. [27] The High Courts interpretation of the Constitution is giving the federal government much more scope to govern policies on; schooling, [28] employment, [29] water, [30] etc. While the notion that there is an increasing trend towards centralization can certainly be seen to hold some merit, it appears to be rather extreme to insist that such trends would render federalism obsolete.

It has also been suggested that the common reasons for federalism have never been present, which queries the formative correctness of employing such a system. Federalism is often employed in usually employed in situations where there is a diverse population [31] , yet it was the similarities of the then British states, which brought about the federation. There were no basic cultural, racial, religious or linguistic differences between the states. Differences between the colonies, which became the states were, and have remained, differences of geography, size and of economic activity and potential. [32] While it can be established that the Australian federation seems to have formed for reasons quite opposite to commonly cited, it can nonetheless be ascertained that there are in fact differences. While trivial, these differences do provide state patriotism, and consequently a desire for state inhabitants to retain a certain independence from the nation government.

The notion that democracy is inevitably enhanced through this process of increased participation can also be challenged. The High Court has refused to read into the constitution a ‘one vote one value’ policy [33] , which could effectively inhibit the enhancement of democracy. The constitution guarantees each original state equal representation in the senate. [34] Yet, approximately 60% of the population resides in Victoria and New South Wales. [35] This potentially confers more power into the smaller states. This possibility seems to merely offer a trivial purpose. The senate is now predominantly a ‘party house’ and it is certainly not in the contemplation of any parties now, or in the near future, to attempt to rort the larger states. Further it seems nigh on impossible to unequivocally assert that democracy has not been enhanced in the Australian version of federalism. The Australian model has still implemented multiple tiers of government which ensures that everyone is represented, not just the majorities, on more than one account. Everyone is represented by up to three different forms of government, Federal, State and Local [36] , with such a high level of political participation, it certainly cannot be said that democracy has not been enhanced through this participatory dimension.

Another issue stemming from the federal model is the concept that even if democracy has been enhanced, the multiple tiers of government could potentially hinder the democratic process and the abilities of governments to appropriately introduce beneficial policies. [37] The notion that federalism could possibly hamper the democratic process derives from the idea that with multiple-tiers of government will come a decrease in accountability and responsibility between the two levels of government. [38] State governments will attempt to shift the blame onto the Federal government, and vice versa. This in turn creates the inability for citizens to make informed decisions when voting. This is a valid observation, however offers no immediate threat to federalism in Australia. The second proposition that the governments are unable to pass advantageous policies is specifically targeted at the frustrations realised by those on the federal level. Only particular economic powers are vested in the federal Parliament, which effectively restricts Parliaments’ ability to comprehensively control the economy. This in turn inhibits Australia’s capacity to compete on an international level, and can have repercussions on the wealth of the country. This proposition is countered through the numerous ways in which the Commonwealth can gain powers to legislate in fields which is would be conceived that there is a need for them to do so. This can be through; co-operative federalism, changing interpretation or the states referring their powers to the Commonwealth. With some many avenues for the federal parliament to gain the necessary jurisdiction, it seems unlikely that Australia would be significantly hindered.

The final argument against federalism is the conflicting principles of federalism and responsible government. It has been asserted; “[t]he purpose of responsible government is to unify and consolidate political power whereas that of federalism is to fragment and circumscribe its exercise.” [39] On analysis these two principles seem the polar opposite. One attempts to restrict governmental power, while the other looks to merge this power into one sovereign power. However on further analysis we are able to see that responsible parliamentary government has “been incorporated into the federal system that most take for granted”. [40]

The “national advantages of largeness” continue to compliment the “local advantages of smallness” offering further emphasis that the Australian model is far from obsolete. The unitary economy, national defence force and ability for Australia as a country to adopt International conventions highlights the advantages of having a unitary country instead of smaller independent colonies. These advantageous outcomes are still able to work in tandem with the state governments’ ability to govern with regards to; the environment, public health and public schooling.

Disadvantages for the States

Another of the main disadvantages for State and Local governments is that although it may look like there is a three tier of government operating these governments actually have much less power then many people would realise. This is a direct result of s 109 of the Constitution which gives the Federal government the favour of power when its law is inconsistent with a law of a State. [41] It is written that:

‘When a law of the State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. [42]

Direct inconsistencies relate to issues where two laws give conflicting commands, or where one law takes away a right or privileges conferred by the other. Inconsistencies however can arise from the intention on the part of the Federal law to ‘cover the field.’ This meant that there was no room for State law to operate in this field. [43]

The way that this inconsistency arose recently was two contradicting laws which related to Federal and State laws on ‘award wages’. An award is not actually a law itself, although it does derive its legal force from the law. So as this is the basis of the law in according to s 109 of the Constitution, a Federal award (law) will generally prevail over an inconsistent State award (law). [44] An excellent example of how the interpretation of s 109 which the High Court gave in regards to the inconsistent between Federal and State awards and employment agreements is that of Clyde Engineering Co Ltd v Cowburn. [45]

It was held that the Forty-four Hours Week Act 1992 (NSW) [46] was inconsistent with the Conciliation and Arbitration Act 1904 (Cth). [47] The Conciliation and Arbitration Act supported the Federal award, as it attempted to alter the terms within the Federal award.

Knox CJ and Gavan-Duffy stated:

‘Two enactments may be inconsistent although obedience to each of them may be possible without the other’. [48]

This resulted in the State Act being invalid which had major grammar factions for State employees regarding their wages and work agreements.

Public goods and services not being tailored to suit popular preference

Another disturbing trend regarding Federalism in Australia at the present moment is that its structure and implementation do not help in the quest to tailor public goods to popular preference. This can be seen in how the Federal government holds the States and the territories to ransom regarding funding in a number of matters such as Education, Transport and Health which directly relate to s 96 of the Constitution. [49] Section 96 relates to the Commonwealth giving financial assistance to States. It is written:

‘That the Parliament may grant finical assistance to any State on such terms and conditions as the Parliament thinks fit.’ [50]

The High Court’s interpretation of this section arose in the case of the Attorney-General (Vic); Ex rel Black v Commonwealth (The DOGS case). [51] This case showed how the Commonwealth Parliament had enacted a series of Acts which related to Federal grant money to the States for the distribution of funds to both government and non-government schools. The Attorney-General sought declarations on the grounds that the Acts were invalid and breeched s 116 of the Constitution which relates to laws establishing any form of religion. [52]

Not surprisingly the High Court held in favour of the Commonwealth, it held that the Acts were valid laws under ss 96 and 116 of the Constitution and that s 96 permitted grant money through a State to third parties. It was also decided that a law giving financial assistance to a church body was not in fact a law which established any religion. [53] Yet again this is an example of how the Commonwealth government uses the High Courts interpretation of the Constitution to their best advantage.

Decrease in democratic political participation

Gilligan’s comments referring to federalism increasing democratic participation, is not actually true within Australia. A prime example of how democratic political participation is limited to the States and its citizens can be seen in the case of Langer v Commonwealth. [54] This case questions s 329A of the Commonwealth Electoral Act 1918 (Cth), which prohibited a person from publishing or disturbing any material which is promotes voters to complete their ballot papers otherwise than in accordance with s 240 of the Act.

The benefit of s 240 was that it allowed for a preferential voting system within the House of Representative elections. The plaintiff argued the following matter; that s 329A was invalid if s 240 required voters to state a preference for a candidate for whom they did not wish to vote for, that s 24 of the Constitution actually requires that ‘Members of the House of Representative shall be consist of members who are directly chosen by the people of the Commonwealth, that a voter can not be forced to record their preference for candidates they do not want and that the implied freedom of political discussion was impaired by s 329A of the Act. [55]

The court held that s 24 of the Constitution must be construed as primarily mandate in a democratic electoral system by ensuring that voters could freely chose between all the candidates standing for election. In the eyes of the court which they believed supported the view that the members of Parliament whom were elected under the preferential voting system, as specified under s 240 of the Commonwealth Electoral Act were not actually ‘chosen by the people’. [56]

Section 240 was seen as being a valid law under the Commonwealth and that s 239A was designed to prevent persons from undermining the electoral system that Parliament had chosen. This was supported by ss 51(xxxvi) and 31 of the Constitution which confers power over to the Commonwealth Parliament by giving them the ability to enact laws which relate to elections. [57] The judgements given in this case clearly