Australian Federalism

Summary

This video explores the concept of Australian federalism, a system where power is shared between a central government and regional state/local governments, as defined by a constitution. It discusses the historical reasons for adopting federalism, its advantages like democracy extension, power dispersion, and policy experimentation, and disadvantages such as over-governance and outdated division of roles. The video also touches on the High Court's role in interpreting the Constitution and the vertical fiscal imbalance that has led to the Commonwealth's dominance, suggesting the need for reform in the federal system.

Takeaways

• 🏛️ Federalism is a system where power is shared between a central government and regional state/local governments, as defined by a constitution.
• 📜 The Australian Constitution establishes a federation with a central government, state governments, and concurrent powers that both levels can legislate on.
• 🚫 If a matter is not listed in the Constitution, the Commonwealth cannot legislate upon it directly, highlighting the limits of federal power.
• 📊 Section 51 of the Australian Constitution lists 39 matters on which the Commonwealth can legislate, including exclusive and concurrent powers.
• 📚 The High Court of Australia serves as the arbiter in disputes between the Commonwealth and States, and between states themselves.
• 🏙️ Local government is not a creation of the Australian Constitution but is established by state law, and thus can be disbanded or merged by state law.
• 🌐 Federalism was chosen for Australia to balance the need for a strong national government with the desire to protect the power and influence of individual states.
• 🌟 Federalism offers advantages such as extending democracy, preventing over concentration of power, and allowing for experimentation and learning between jurisdictions.
• 💡 It provides citizens with choice and diversity, encouraging states to compete for workers and investment, which can lead to more efficient and effective governance.
• 🔄 The system of federalism can guard against national government being overwhelmed and contain the consequences of policy failure by limiting the impact to individual states.
• 🛑 Despite its advantages, federalism in Australia faces criticism due to structural issues, outdated division of powers, and the challenges of coordinating between levels of government.

Q & A

What is federalism and how is it different from a unitary system and a confederation?

Federalism is a system of government where power is shared between a central national government and regional state/local governments, as defined by a written constitution and policed by an independent arbiter. It differs from a unitary system, where all power is centralized, and a confederation, where member states retain sovereignty and delegate limited powers to a federal body without creating a separate sovereign federal state.

What are the key characteristics of the Australian Constitution as a federation?

The Australian Constitution establishes a central national government called the Commonwealth of Australia, state governments, a list of matters for Commonwealth legislation with some exclusive to the Commonwealth, concurrent powers where both Commonwealth and states can legislate, and a provision for resolving inconsistencies between state and Commonwealth laws with the Commonwealth law prevailing.

Why were the framers of the Australian Constitution concerned about protecting the power and influence of the states?

The framers were concerned to protect the states' power and influence to prevent the new national government from becoming overbearing, and to ensure that the states retained their own autonomy and authority within the new Federation.

How does the Australian Constitution address the division of legislative power between the Commonwealth and the states?

The Constitution divides legislative power by listing matters on which the Commonwealth can legislate in Section 51, with some being exclusive and others being concurrent powers where states can also legislate. Matters not listed cannot be legislated upon directly by the Commonwealth.

What is the role of the High Court of Australia in the context of federalism?

The High Court of Australia serves as the independent arbiter to adjudicate disputes between the Commonwealth and states, and between state and state, ensuring the constitutional balance of power is maintained.

Why is local government not a creation of the Australian Constitution?

Local government is not a creation of the Australian Constitution because it is established by state law. This allows for local governments to be disbanded or merged by state law, unlike states which can only be altered through constitutional processes.

What were the reasons for choosing federalism for Australia at the time of its creation?

Federalism was chosen to facilitate a strong national economy and defense, promote a sense of national identity, and to balance the need for a national government with the desire to protect the power and influence of the individual states.

How does federalism provide advantages such as democracy, liberty, and government responsiveness?

Federalism extends democracy by allowing issues to be addressed at the appropriate level, disperses power to prevent over-concentration, strengthens local interests, and provides citizens with choice and diversity, encouraging competition and efficiency among states.

What are some of the disadvantages or problems associated with Australian federalism?

Disadvantages include over-governance, outdated division of roles, lack of cooperation between governments, splurt roles and responsibilities, and vertical fiscal imbalance where states are dependent on the Commonwealth for revenue.

How has the High Court's interpretation of the Constitution contributed to the Commonwealth's expanded role?

The High Court has applied a broad interpretation to Commonwealth powers, such as External Affairs and corporations powers, allowing the Commonwealth to legislate on matters like environmental protection through international treaties.

What is meant by 'vertical fiscal imbalance' in the context of Australian federalism?

Vertical fiscal imbalance refers to the situation where most tax revenue is raised by the Commonwealth, leaving states dependent on the Commonwealth for funding to provide basic services, which can influence state policies and actions.

Outlines

00:00

🏛 Understanding Federalism in Australia

The first paragraph introduces the concept of federalism as the foundational system of government in Australia, as described by Ninian Stephen. It explains federalism as a division of power between a central national government and regional governments, governed by a constitution and overseen by an independent arbiter. The Australian Constitution is highlighted for establishing a federation with a central government, state governments, and concurrent powers. The paragraph also discusses the distinction between federalism and unitary systems or confederations, and the historical reasons behind choosing federalism for Australia, including the desire to balance national identity with state autonomy.

05:00

🛠️ The Mechanics and Advantages of Federalism

The second paragraph delves into the specifics of federalism, discussing the legislative powers granted to the Commonwealth and the states, and the concept of concurrent powers. It raises questions about the distribution of powers and the ability of the Commonwealth to legislate on matters not listed in the Constitution. The paragraph outlines the benefits of federalism, such as extending democracy, preventing the concentration of power, enhancing government responsiveness, providing choice and diversity, and allowing for experimentation and learning between jurisdictions. It also mentions the role of the High Court in resolving disputes and the unique status of local governments, which are creations of state law rather than the Constitution.

10:01

🔍 Critiques and Challenges of Australian Federalism

The third paragraph addresses the criticisms and challenges faced by the Australian federal system. It discusses the structural issues such as over-governance and the outdated division of powers, as well as the operational challenges like the lack of cooperation between Commonwealth and state governments on concurrent powers. The paragraph also touches on the impact of the High Court's broad interpretation of Commonwealth powers and the vertical fiscal imbalance, which has led to the Commonwealth's dominant position and the states' dependence on federal funding. It highlights the public and expert consensus on the need for reform in the federal system.

15:02

🛑 Conclusion and Reflections on Federalism's Future

The final paragraph concludes the discussion on federalism by acknowledging its advantages and disadvantages. It suggests that while the system should not be abandoned, there is room for improvement. The paragraph invites reflection on potential changes to the federal system and expresses hope that the topic has been engaging, with lecturers looking forward to further discussions in lectures.

Keywords

💡Federalism

Federalism is a system of government where power is divided between a central authority and regional governments. It is central to the video's theme as it explains how federalism functions in Australia, with sovereignty and power shared between the Commonwealth and state governments. The script mentions that federalism is chosen for Australia to balance the power between a strong national government and protecting the states' autonomy.

💡Sovereignty

Sovereignty refers to the supreme power or authority of a government. In the context of the video, it is discussed in relation to how federalism divides sovereignty between different levels of government, distinguishing it from a unitary system where all power is centralized and a confederation where member states retain sovereignty.

💡Constitution

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. The Australian Constitution is highlighted in the video as the document that establishes the framework for federalism, detailing the division of powers and the roles of the Commonwealth and state governments.

💡Commonwealth of Australia

The Commonwealth of Australia is the central national government in the federal system. The video script explains that the Commonwealth has the power to legislate on certain matters, and its role is to perform important national functions such as trade, infrastructure, and defense.

💡State Governments

State governments are the regional governments within the Australian federation. The script discusses their creation from the existing colonies and their legislative powers, which include both exclusive and concurrent powers with the Commonwealth.

💡Concurrent Powers

Concurrent powers are legislative powers that both the Commonwealth and state governments can exercise. The video script explains that most matters on which the Commonwealth can legislate are not exclusive, allowing states to also legislate on these matters, leading to potential conflicts and the need for constitutional provisions to resolve them.

💡Section 51

Section 51 of the Australian Constitution lists the matters on which the Commonwealth can legislate. The video script refers to this section as the source of the Commonwealth's legislative powers, including 39 matters such as trade and commerce, postal services, and defense.

💡Section 109

Section 109 of the Australian Constitution addresses the situation where state laws are inconsistent with Commonwealth laws. The video script explains that under this section, Commonwealth law prevails, and the conflicting state law is invalid to the extent of the inconsistency.

💡High Court of Australia

The High Court of Australia is the highest court in the country and has the role of adjudicating disputes between the Commonwealth and states, as mentioned in the video script. It plays a crucial role in interpreting the Constitution and resolving issues of power distribution.

💡Local Government

Local government is not a creation of the Australian Constitution but is established by state law. The video script points out that local governments can be disbanded or merged by state law, unlike states, which have constitutional protection and can only be changed through constitutional processes.

💡Vertical Fiscal Imbalance

Vertical fiscal imbalance refers to the situation where the central government raises most of the tax revenue, leaving states dependent on the Commonwealth for funding. The video script discusses this concept as a factor contributing to the Commonwealth's dominance and the states' reliance on it for essential services.

Highlights

Federalism is the foundation of the Australian polity and system of government.

Federalism involves the sharing of power between a central government and regional state/local governments as defined by a written constitution.

Australia's federal system is distinguished from a unitary system and a confederation by its division of power and the role of an independent arbiter.

The Australian Constitution establishes a federation with a central government and state governments, each with legislating powers on specific matters.

Some legislative matters are exclusive to the Commonwealth, while others are concurrent, allowing both Commonwealth and states to legislate.

Section 51 of the Constitution lists 39 matters on which the Commonwealth can legislate, including trade, commerce, and defense.

If a state law conflicts with a Commonwealth law, the Commonwealth law prevails as per Section 109 of the Constitution.

The High Court of Australia adjudicates disputes between the Commonwealth and states, and between states themselves.

Local government is not a creation of the Australian Constitution but is established by state law and can be disbanded or merged by state law.

Federalism was chosen for Australia to balance the need for a strong national government with the protection of state power and influence.

The division of legislative power in Australia reflects the desire for nationhood and the need for trade, commerce, and defense.

Federalism provides stability for democracy, divides power to prevent over concentration, and strengthens government responsiveness to local interests.

Citizens have choice and diversity in federal systems, allowing for comparison and movement between states based on policy preferences.

Federalism allows for experimentation and learning between jurisdictions, serving as 'laboratories of democracy'.

Retaining state governments with significant functions provides for more efficient government through comparison and political pressure.

Federalism guards against national government being overwhelmed and contains the consequences of policy failure within states.

Despite its advantages, Australian federalism faces criticism due to structural issues, outdated division of roles, and splurt roles and responsibilities.

The lack of effective mechanisms for the exercise of concurrent powers and the reliance on the cooperation of CoAG members contribute to federalism's challenges.

Politics and the alignment of parties in power at different levels of government can hinder consensus and cooperation.

The High Court's broad interpretation of Commonwealth powers has led to an expanded role for the Commonwealth at the expense of state autonomy.

Vertical fiscal imbalance, where the Commonwealth raises most tax revenue, creates state dependence on Commonwealth funding.

The Commonwealth's use of tied grants to influence state policy implementation is a result of fiscal dominance.

Despite criticisms, there is a scope for improvement in the federal system rather than abandonment.

Transcripts

in this video we are going to look at

Australian federalism former

governor-general and High Court justice

at Ninian Stephen described federalism

as the foundation upon which rests our

whole Australian polity our system of

government so what is federalism why was

it chosen for Australia and how does it

function at its core federalism is a

system of government in which

sovereignty lated power is shared

between two or more territorially

defined levels of government a central

national government and a number of

regional state and/or local governments

and where the distribution of power is

affected by a written constitution and

policed by an independent arbiter as

such a federalism is distinguishable

from a unitary system of government in

which all power is vested in one central

government and a confederation which is

generally used to refer to an

association of member states that

delegate specific limited power to a

federal body but in which sovereignty

remains with the individual member

states and a separate sovereign federal

state is not created can you think of

countries with the unitary system of

government and countries that operate

within a confederation consistent with

this definition of federalism the

Australian Constitution establishes as a

set of strata as a federation with the

following characteristics a central

national government called the

Commonwealth of Australia state

governments being Z then existing

colonies and any other states that may

be admitted into the Commonwealth in

accordance with the Constitution a list

of matters that the newly created

Commonwealth of Australia may legislate

upon some of these matters are expressed

to be exclusive to the Commonwealth most

matters on which the Commonwealth can

legislate however are not expressed to

be exclusive as a result they are

matters on which the states also can

legislate these are called concurrent

powers most of these powers are found in

section 51 of the Constitution which

lists 39 matters on which the

Commonwealth can legislate you should

have a read of that section importantly

if a matter is not listed in the

Constitution as within the Commonwealth

then the Commonwealth cannot legislate

upon it directly we will come back to

the distribution of power between the

Commonwealth and States shortly the

Constitution also provides rules that

govern situations when both Commonwealth

and state governments legislate upon the

same matter principally section 109 of

the Constitution that provides that when

a state law is inconsistent with the law

of the Commonwealth the law of the

Commonwealth shall prevail and the law

of the state shall to the extent of the

inconsistency be invalid and finally the

Constitution provides the judge to

adjudicate upon disputes between the

Commonwealth and States and between

state and state namely the High Court of

Australia what's missing from this list

local government local government is not

a creation of the Australian

Constitution local government is a

creation of state law as such they can

equally be the disbanded and merged by

state law this is not the case with the

States however their constitutional

recognition means States can only be

disbanded or merged in accordance with

the processes laid out in the

Constitution so why did the framers of

our Constitution choose federalism for

Australia to answer this question one

must first understand a little about the

circumstances of Australia's creation

there were many reasons why the then

colonies chose to formally separate from

the United Kingdom these included a

newly forged sense of national identity

the desire to facilitate a strong

national economy and defence the

colonists were prepared to cede to the

new national government those powers

necessary for it to perform these

important national functions at the same

time however the soon-to-be states were

concerned to protect their own power and

influence from what they feared might

become and overbearing national

government as a result they were loath

to cede to the new national government

more power than what was thought

necessary for it just for it to

discharge its new national functions the

solution they settled upon was

federalism federalism provided a

mechanism for both

dating and power and empowering a new

national government while at the same

time respecting and protecting the

separate existence of the colonies which

would become States within the new

nation the division of legislative power

between the Commonwealth and States

settled on by the framers of our

Constitution tells us a lot about how

they saw the new Federation operating

have a look at this list of matters on

which the Commonwealth has been

empowered to legislate also have a look

at the matters on which it is not

empowered to legislate and that were

left to the states on Federation you

will see that consistent with the forces

driving the desire for nationhood that

the matters over which the Commonwealth

was given power to legislate remate

promote primarily to trade and commerce

the infrastructure necessary for trade

and commerce and defense does the list

surprise you are there items in either

column you thought would have been in

the other column you also might be

asking yourself but doesn't the

Commonwealth pass laws on matters in the

right hand column don't we have a

Commonwealth laws protecting the

environment if yes how can it do so

validly we will come back to this

question shortly in the meantime let's

look first at federalism other

advantages in addition to creating

empowering respecting and protecting

separate national and regional

governments first federalism provides a

stable mechanism for extending democracy

across a large territory and population

one which gives citizens are saying how

national issues are addressed at the

national level and local issues are

addressed at the local level federalism

also divides and disperses power across

a number of governments thereby

preventing a single government from

being able to impose its will on all the

people as justice Kirby noted in the

word choices case it is a feature that

tends to protect liberty and to restrain

the over concentration of power which

modern governments global forces

technology and now the modern

corporation tend to encourage federalism

also strengthens government

responsiveness to local interests

federalism decentralizes local issues to

state governments which

to the people and better able to reflect

their preferences in their policy and

the lip service delivery decisions

moreover federalism provide citizens

with choice and diversity federalism

allows people and businesses to compare

the policies and performances of states

and to move to those states that meet

best meet their preferences

this results in states competing with

each other to attract workers and

investment this political competition

disciplines governments to be efficient

effective and responsible responsive in

the delivery of public goods and

services in the same way that price

competition disciplines private

suppliers of goods and services next

federalism creates opportunities for

experimentation and interjurisdictional

learning US Supreme Court justice Louis

Brandeis famously referred to federal

systems as laboratories of democracy in

which a state may if its citizens choose

serve as a laboratory and try novel

social and economic experiments without

risk to the rest of the country a good

example of this principle in action was

the reform of South Australian

government of Don Dunstan in the 1970s

mr. Dunstan's government introduced many

reforms that today we take for granted

these included consumer protection

legislation anti race and sex

discrimination legislation and the

decriminalization of homosexuality

further by retaining state governments

with significant functions federalism

provides for more efficient government

Commonwealth and state governments are

constantly compared with each other

this places government under political

pressure to improve their performance

through innovation or through learning

from the successes and failures of other

jurisdictions the result is said to

create a cycle of experimentation

observation review and improvement in

which successful policy innovations are

diffused across jurisdictions to the

benefit of all citizens and unsuccessful

innovations are either avoided or

improved upon by other states finally

set religion guards against the national

government being overwhelmed by its

responsibilities and contains the

consequences of policy failure as one

commentator observed a bad regulation in

one state will generally be less costly

than a unit

formerly bad regulation everywhere as

can be seen federalism has a number of

advantages however federalism also has a

number of disadvantages or problems for

some the problems are structural that

Australia is over governed that for a

country with our population and

population density around major cities

there are just too many governments and

too many politicians and yet for others

the problems lie in Australian

federalism outdated division of roles

and responsibilities between

Commonwealth and state governments that

they are governed by a

nineteenth-century constitutional

division of powers that is not capable

of meeting the challenges presented by

increasing globalization international

economic competition and rapid advances

in technology and communication for

others the problem lies in federalism

splurt roles and responsibilities that

the Constitution simultaneously allows

both Commonwealth and state governments

to legislate on the type on the same

topic reflected in that long list of

compact concurrent powers listed in

section 51 this problem frequently is

compounded by the failure of

Commonwealth and state governments to

cooperate and work together effectively

to address issues that fall within their

concurrent powers one only has to look

at recent debates over education and

health reform the distribution of GST

revenue and climate change policy to see

that our Federation frequently is

characterized by disagreement

blame-shifting and a lack of

accountability others point to multiple

states regulating the same issues

leading to duplication overlap an

inconsistent regulation that imposes

unnecessary costs on businesses

operating in more than one state for

example each state has its own workplace

health and safety regulation that can

differ in their detailed requirements

such other problems with Australian

federalism that recent research revealed

that 90 percent of citizens had a

negative view of the present federal

system and 75 percent would prefer a

different system to that which exists

today

this is matched in political academic

and business circles where there is a

growing consensus on the need to reform

our federal system of government so how

did we get to this situation how is it

that a system with so many theoretical

and practical advantages is subject to

so much criticism different people have

different answers to the question here

are mine first the framers of our

Constitution did not establish

mechanisms or institutions for the

effective and efficient exercise of

concurrent and overlapping powers by

Commonwealth and state governments the

Maine coordinating mechanism today is

the Council of Australian governments or

Co AG and the various ministerial

councils under it however you will find

no mention of Co AG in the Constitution

it is the creation of the Commonwealth

and it relies for its effectiveness on

the cooperation and goodwill of its

members which is not always forthcoming

especially if the issue is politically

contentious this brings us to my second

reason politics if the parties in power

of the Commonwealth and state levels are

not ideologically aligned reaching

consensus can be difficult and even if

they are ideologically aligned consensus

can still be difficult to reach because

Commonwealth and state governments have

different priorities the Commonwealth

Government is elected to govern in the

national interest state governments are

elected to govern in the interest of

their state state governments perception

of its state's interests may not always

align with the Commonwealth government's

perception of the national interest the

debate over the management of the

murray-darling Basin that spans parts of

Victoria New South Wales South Australia

Queensland and the AC T is a good

example of this

another reason is the High Court is that

the High Court has interpreted the

Constitution in a manner supportive of

an expanded Commonwealth role you will

study in constitutional law that the

High Court has applied a broad

interpretation to Commonwealth powers

such as the External Affairs and

corporations powers this is how the

Commonwealth can pass environmental

protection laws for example as we

observed earlier the Constitution does

not confer on the Commonwealth the power

to legislate for the environment

however the High Court has held that the

Commonwealth power to legislate with

respect to external affairs empowers a

common

to legislate on any matter the subject

of an international treaty to which it

is a signatory international

environmental treaties that have given

the Commonwealth the power to legislate

on environmental matters and finally

there is what is called the vertical

fiscal imbalance this refers to the fact

that most tax revenue in Australia is

raised by the Commonwealth government

and that the states do not raise enough

revenue of their own to provide the

basic services their citizens expect

from them such as hospitals and schools

this makes the states dependent on the

Commonwealth for money to properly

discharge their responsibilities in

those areas and the High Court has held

it is permissible for the Commonwealth

to provide that money to States on the

condition they spend it in accordance

with the Commonwealth directions these

are called tied grams these latter two

factors in particular the high courts

expansive interpretation of Commonwealth

powers and the vertical fiscal imbalance

have placed the Commonwealth in a

constitutionally and fiscally dominant

position of is Aviva states which

position successive Commonwealth

governments have leverage to place

themselves at the center of policy

development on a range of issues

traditionally thought of the state

responsibilities sometimes the

Commonwealth has done this by directly

legislating for an issue against the

wishes of the state or States for

example by preventing the damming of the

Franklin and Gordon rivers in Tasmania

in the 1980s and more recently by

legislating the definition of marriage

in the Maine however the Commonwealth

has leveraged the state's dependence on

it for the revenue they need to

discharge their core responsibilities to

make the provision of financial grants

to the states conditional on the state's

implementing the Commonwealth's policy

preferences in key areas in respect of

which it has no clear constitutional

header power these include education

health and urban planning to name but a

few

in conclusion federalism has a number of

advantages and disadvantages the

advantages mean the system should not be

abandoned the disadvantages mean there

is scope for improvement

what changes to our federal system would

you make I hope you have found this

topic interesting your lecturers look

forward to discussing the concepts

covered in this video with you in

lectures