Australia & The US: Comparative Federalism

As the issue of Federalism becomes prominent once again in Australian political discourse, particularly with the possibility of a Federal takeover of healthcare from the states, I am becoming more and more concerned at how few people understand  the history of our Federal system.

A few years ago, for one of my Law subjects, I wrote an essay comparing the history of Federalism in Australia and the US (as a side note, there is little (read: none) Australian legal scholarship on the inter-relationship between Australian Constitutional Law & US Constitutional Law post 1901, something which really needs to be done one day). Like with many of my long rambling essays, I got annoyed and submitted it without the necessary editing, so it is still written in quite a sloppy fashion, but I think some people might be interested in it.

Some random extracts:

The federal-state question is hip once again. Lying dormant for decades, relegated to gather dust in university history departments, glanced upon only periodically by the wistful romantic longings of classical liberals, and peppered with the occasional outburst by members of the Samuel Griffiths Society, latent questions of Australian federalism have once again emerged in political, academic and media discourse. Not only have media reports investigating the federal-state balance increased exponentially since the previous decade, Australian Heads of Government are openly calling for a structural overhaul of the current federalism model. Triggered partially by the WorkChoices legislation – one of the “most important cases with respect to the relationship between the Commonwealth and the States to come before the [High] Court in all of the years of its existence”- all areas of Federal/State relations have fallen under intense scrutiny, and, with the creation of an opposition Federal-State relation portfolio to facilitate “a radical revamp of commonwealth and state responsibilities”, combining with the Coalition abandoning its traditional defence of the States in a profound and unambiguous manner, with Ministers Costello, Abbott, Nelson and Bishop all arguing for greater central control, it seems inevitable that the paradigm of co-ordinate federalism in place for the majority of the 20th century is dead. Calls are already been made for a Federal criminal code, a nationalised secondary educational curriculum water and health careas well as in many other previously-unmentionable areas. More recently, Australian Treasurer Peter Costello has argued that states could face a fresh assault on their power as “the public sees the commonwealth as a more competent administrator than the states”, and that “Canberra should have full responsibility for the national economy, including the major interstate transport routes and export ports, which were “the lifeblood of our trading systems”. Indeed, the 21st century will usher in an intensified cultural-cum-ideological struggle over federalism, and whether states shall become mere administrative units of a nationalised policy to enforce equality, or become competitors for services and allegiances in a competitive political economy. As such, the federalism debate is, without doubt, the most important political, legal and constitutional debate taking place today, going to our very roots as a nation, and that, as the next millennium begins, problems of freedom, governance and public policy around the globe will increasingly become problems of federalism Yet, as seems to be an all too common occurrence in modern Australian political discourse, the present media debate remains disconnected from the philosophical and legal underpinnings of Australian Federalism, and the rich political, jurisprudential and constitutional history surrounding it. The distinction between decentralisation, and Constitutional Federalism, reserving permanently to the states a measure of sovereignty wholly absent in today’s definitions of federalism, remains obscured to most  It is only through such an understanding can the long ascent up from Hades begin. Such an understanding can not be had, however, without fully appreciating and understanding the distinction between normative political theories of federalism, and the applicable constitutional issues, in particular, the relationship between the Australian Constitution, and that of the United States of America.

The single most important precedent for the federation fathers was the US. Like Canada, Australia was a federation of former British colonies, but the US federal system struck a balance between the State and federal authorities which, if adopted in Australia, still protected many of the colonies parochial interests. The idea that Australia could become a single unified nation with colonies reduced to the level of large municipalities, as was the case in Canada,  was wholly unacceptable to the colonial delegates, and, as such, with the founders considering Canada’s constitutional structure too centralist the more decentralised distribution of powers used in the Constitution of the US was deliberately chosen.

The descent to centralism in Australian Constitutional Law can be traced back to 1913, with the expansion of the High Court from five to seven in a manner analogous to Roosevelt’s infamous ‘Court-packing’ scandal. Whilst strong centralist tendencies were clearly evident in the judgments of Isaacs and Higgins JJ, who, as members of the Constitutional Conventions argued strongly in favour of a more expansive s.51, however were generally defeated, yet nevertheless continued with dissenting judgments written clearly through a centralist paradigm. It was only following the defeat of constitutional referendums to increase Commonwealth powers over industrial relations in 1911 and 1913, that federalism came under considerable judicial attack, when Attorney-General, Billy Hughes, under Prime Minister Andrew Fisher, took the opportunity to try to ‘stack’ the court. Despite the controversy surrounding the initial appointment of Albert Piddington, whereby before being appointed, Piddington assured Hughes of his “sympathy” in favour of Commonwealth powers, leading to his resignation from the bench not having tried a single case, the appointments of justices Rich and Starke led to much the same result, and, with the death of O’Connor, and an expanded High Court, Griffith and Barton found themselves in a minority. By 1920, both Griffith and Barton had left the bench, and, with the appointment of Knox as Chief Justice by Billy Hughes, the scene for a constitutional showdown was set, and, by 1920, the twin doctrines of immunity of instrumentalities and reserved state powers, as well as the use of origionalism, were overruled…. It can not be disputed Engineers’ Case remains an event of capital importance in Australian history, not so much for what it actually decided, as for the way in which it switched the entire enterprise of Australian federalism onto a diverging track that carried it to destinations far removed from those intended by the generation that had brought the federation into being…Simultaneous to the Australian debate about the Federal-State balance, similar debate was taking place in the United States…

If you are particularly masochistic, you can read the full 15,000 odd words here.

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7 Responses to “Australia & The US: Comparative Federalism”

  1. brad Says:

    pity your first quote (of yourself) contains a howler – think you meant ‘laying’ not ‘lying’.

  2. Tim Andrews Says:

    As I said, it requires editing 🙂

  3. Tim Andrews Says:

    However, free online dictionary tells me that it is appropriate to use lying in the context I did. So there! 🙂

  4. Tim Humphries Says:

    Interesting material. I wonder if this means your future commentary posts will focus on the centrist v.s. non-centrist debate.

  5. TerjeP (say tay-a) Says:

    Perhaps supreme court judges should be appointed by the states rather than by federal government.

  6. Tim Andrews Says:

    Terje – I think that such a system has a lot of potential (I assume you mean High Court, not Supreme though?). I can’t really see it happening though.

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