“Facilis descensus Averno, Sed revocare gradum, superasque evadere ad auras, Hoc opus, hic labor est” – In Defence Of Federalism, Chief Justice Harry Gibbs
It is hardly a great secret that Federalism & the Australian Constitution is a great passion of mine. Indeed, I freely admit that back in the day I would read rulings of the Griffith High Court – rulings that, in my mind, were not merely legal opinions, but works of beauty sublime – in my spare time, and that I still speak about the subject whenever I get the chance (I recall a few months ago – quite literally – putting a poor American to sleep with my rants on the matter). So I’m a Con Law geek. Deal with it.
In light of this, though, it is of great sorrow to me that of the few people remaining on our side of politics in Australia who remain committed to the core Liberal-conservative principle of Federalism, there is little understanding of how we got into our present morass, and that, outside of the membership of my beloved Samuel Griffiths Society (which ought really consider renaming itself to The Society of St. Jude), few are aware of how the High Court of Australia rode roughshod over the Australian constitution, and, in the course of 80 years, ripped up the Framers intentions, and turned very limited powers into a blank cheque for the Commonwealth.
I’ve also noticed that no real summary exists of how this occurred. As such, I thought I would prepare a very brief history of Federalism in Australia, as seen through the few landmark cases which act as signposts to the Tartarus we are now in. Hopefully some of you will find it useful. (Also if people are interested, I may follow this up with a discussion on how the Australian Constitution was based primarily on the U.S. Constitution in terms of Federalism, and, more importantly, how even following Federation there were strong links between U.S. and Australian jurisprudence, to the effect that the Australian High Court adopted U.S. rulings carte blanche, but we shall see). I note that much of this post is adapted from an Independent Research Project I wrote at Law School, which, if you wish to download, you may here.