Abstract
Since the landmark decision of the Australian High Court in the Engineers case, the Australian federation has become increasingly centralised to the extent that Australia has become less than an authentic federation. This paper evaluates whether the principle of subsidiarity, which is a fundamental characteristic of a federal system of government, could be implemented in Australia to restore legislative and financial powers to the Australian states. The chapter suggests specific constitutional and other reforms.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
The Australian Constitution is an act of the British Parliament, the Commonwealth of Australia Constitution Act 1900 (UK) (‘Constitution’).
- 2.
- 3.
Halberstam (2009, p. 34).
- 4.
- 5.
Montgomery (2002, p. 48).
- 6.
Longo (1999, p. 225).
- 7.
Halberstam, above n 3, p. 35.
- 8.
- 9.
Ibid.
- 10.
Treaty on European Union, opened for signature 7 February 1992, [2009] OJ C 115/13 (entered into force 1 November 1993) (‘TEU’). See also, Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality [2010] OJ C 83/206 (‘Protocol’).
- 11.
Vause (1995, pp. 64–65).
- 12.
In the European Union the principle of subsidiarity has been effective as a procedural safeguard in the legislative process to guard against centralisation. However, at a judicial level, the principle has been disregarded by the European Court of Justice (ECJ), as evidenced by no directives or regulations being annulled on the basis of it. This is because the ECJ has regarded the principle as a political judgment, best left to the European Parliament and Council. These issues are discussed in more detail by Moens and Trone in Chap. 9.
- 13.
These Conventions were: The Australasian Federation Conference, held in Melbourne, from 6 February 1890 until 14 February 1890; The National Australasian Convention held in Sydney, from 2 March 1891 until 9 April 1891; The Australasian Federal Convention 1897/8. This conference was held in several sessions. The First Session was in Adelaide from 22 March 1897 until 23 April 1897. On 2 September 1897, the delegates resumed the Convention in Sydney. The Sydney session was adjourned on 24 September. The next and final session of the Convention was scheduled for 20 January 1898 in Melbourne, and went until 17 March 1898. For a discussion of the Convention Debates, see generally Quick and Garran (1901, 2002 ed) and La Nauze (1972).
- 14.
New South Wales v Commonwealth of Australia (2006) 229 CLR 1 (‘Work Choices’), 226.
- 15.
Sir Henry Parkes (1815–1896) was a parliamentarian and Premier of New South Wales and has been described as the ‘father of the Australian federation’. It was Parkes’ idea that the colonies should unite under a Federal Council. He argued for its establishment at intercolonial conferences in 1880 and 1891, before abandoning the idea in favour of a more authentic federation of the Australian states. He was instrumental in bringing about the first Constitutional Conference in Melbourne in 1890, and the 1891 Federal Convention in Sydney and was a major participant, proposing key resolutions at both: See Williams (2003, pp. 9–17). See also La Nauze, above n 13, pp. 92–93.
- 16.
Official Record of the Debates of the Australasian Federal Convention, Sydney, 4 March 1891, p. 24 (Sir Henry Parkes).
- 17.
Official Record of the Debates of the Australasian Federal Convention, Sydney, 13 March 1891, p. 328 (Sir Thomas Playford).
- 18.
Ibid.
- 19.
Alfred Deakin (1856–1919) is also one of Australia’s best known founding fathers. Deakin was a lawyer who also served as a member of the Victorian Parliament. He participated in all of the Constitutional Conventions, including serving on the drafting committees at both the 1891 and 1897/98 Conventions. He was the youngest delegate at the 1891 Federal Convention in Sydney. After federation he served in the federal Parliament as Australia’s first Attorney-General. See generally, Norris (1981).
- 20.
Official Record of the Debates of the Australasian Federal Convention, Sydney, 5 March 1891, pp. 79–80 (Alfred Deakin).
- 21.
Constitution, Preamble. Emphasis added. Western Australia is absent because it delayed in passing an enabling Act and Referendum to approve the final draft of the Constitution Bill. However, it did so prior to Proclamation of the new Commonwealth by the Queen. Hence, Western Australia was able to be admitted as an original State of the new Federation.
- 22.
Sawer (1975, p. 87).
- 23.
Dicey (1926, p. 530).
- 24.
Quick and Garran, above n 13, p. 934.
- 25.
Official Record of the Debates of the Australasian Federal Convention, Sydney, 16 March 1891, 383 (Alfred Deakin).
- 26.
Constitution s 51(i).
- 27.
Constitution s 51(iv).
- 28.
Constitution s 51(vi).
- 29.
Constitution s 51(xii).
- 30.
Constitution s 51(xxvii).
- 31.
Constitution s 51(xxix).
- 32.
Quick and Garran, above n 13.
- 33.
Originally, the Federal Parliament could legislate with respect to 39 matters. This was increased to 40 in 1946 with the insertion of s 51(xxiiiA) which allowed the Federal Parliament to legislate with respect to certain social security allowances such as unemployment, pharmaceutical and medical benefits. See Quick and Garran, above n 13, p. 933.
- 34.
Quick and Garran, above n 13, p. 933.
- 35.
Quick and Garran, above n 13, p. 935.
- 36.
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1.
- 37.
Quick and Garran list examples from powers requiring consent by the Federal Parliament before a State may exercise that power. These include: s 91, which provides that a State may only grant an aid or bounty on the production or export of goods with the consent of Federal Parliament. Another example can be found in s 114, which provides that a State cannot raise or maintain naval or military forces, or tax property of the Commonwealth, without the consent of the Federal Parliament. See Quick and Garran, above n 13, p. 936.
Quick and Garran also note examples of where the Constitution restricts State powers. These include: s 51(xxxii), which, in providing that the Parliament can legislate with respect to the control of railways with respect to transport for the naval or military purposes of the Commonwealth, restricts State control of railways to that extent. Similarly, s 98 allows the Federal Parliament to make laws about State railways in connection with the trade and commerce power; s 90 restricts the power of the States with respect to taxation by making the ability to levy duties of customs and excise exclusive to the Federal Parliament; and s 92 restricts the States and Commonwealth from restricting freedom of interstate trade and movement. Quick and Garran, above n 13, p. 936.
- 38.
Quick and Garran, above n 13, p. 414.
- 39.
See Sawer (1967, p. 150).
- 40.
Quick and Garran, above n 13, p. 725.
- 41.
Craven (1999, p. 221).
- 42.
Sir Samuel Griffith (1845–1920) was the first Chief Justice of the High Court of Australia. He was sworn in on 6 October 1903: see Sawer, above n 39, p. 21. Griffith had been the Premier of Queensland and had drafted the Federal Council of Australasia Act 1885 enacted by the British Parliament to establish the Federal Council of Australasia: For background to The Federal Council of Australasia, see Quick and Garran, above n 13, pp. 109–115. Griffith also represented Queensland at the Australasian Federation Conference in 1890 and was also a delegate at the National Australasian Convention at Sydney in 1891 where he was Vice-President and also part of the drafting Committee which produced the first draft Constitution. See generally Quick and Garran, above n 13.
- 43.
Edmund Barton (1849–1920) is most famous for being Australia’s first Prime Minister. When he was a New South Wales Member of Parliament, was a delegate at the National Australasian Convention in Sydney in 1891, where, with Sir Samuel Griffith, he was part of the drafting sub-Committee which formulated a first draft of the Constitution. Barton was also a delegate at the 1897/8 Australasian Federal Convention where he chaired the drafting Committee (of which O’Connor was also a member). Richard Edward O’Connor (1851–1912) had attended the Australasian Federal Convention of 1897/8 as a representative of New South Wales. He was a Member of the Legislative Council for 13 years. Also, O’Connor was part of Barton’s first Ministry. He was one of the first senators representing New South Wales in the first Senate and was also appointed as Vice-President of the Executive Council: see generally Turner (1911).
- 44.
For a discussion of the founders’ intentions with respect to the High Court see Craven (1995, p. 65).
- 45.
The first case to recognise Commonwealth immunity from state legislation was D’Emden v Pedder (1904) 1 CLR 91 and the first case to recognise state immunity from Commonwealth legislation was Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 (‘Railway Servants’ case’).
- 46.
See, for example, Peterswald v Bartley (1904) 1 CLR 497; R and the Minister of State for the Commonwealth Administering the Customs v Barger; The Commonwealth and AW Smart, Collector of Customs v McKay (1908) 6 CLR 41 (‘R v Barger’); and Huddart, Parker & Co v Moorehead (1909) 8 CLR 330.
- 47.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers’).
- 48.
For example, the corporations power in Constitution s 51(xx).
- 49.
de Q Walker (2002, p. 678).
- 50.
Income Tax Act 1942 (Cth), States Grants (Income Tax Reimbursement) Act 1942 (Cth), Income Tax (War-time Arrangements) Act 1942 (Cth) and the Income Tax Assessment Act 1942 (Cth). For a discussion of the centralisation of income tax in the Australian Federation, see Blackshield and Williams (2006, pp. 1122–1123).
- 51.
South Australia v Commonwealth (1942) 65 CLR 373 (‘First Uniform Tax case’) and Victoria v Commonwealth (1957) 99 CLR 575.
- 52.
Constitution s 96.
- 53.
Ha v New South Wales (1997) 189 CLR 465 (‘Ha’).
- 54.
Twomey and Withers (2007, p. 36).
- 55.
Constitution s 51(xxix). For a discussion of the expansion of the external affairs power, see Zimmermann and Finlay (2010, pp. 17–19).
- 56.
Work Choices (2006) 229 CLR 1, 103.
- 57.
Work Choices (2006) 229 CLR 1, 104.
- 58.
Work Choices (2006) 229 CLR 1, 116.
- 59.
See, for example, Cramp (1913, p. 111). Cramp stated that in ‘large areas’ federalism is preferable because ‘it is the best means of developing a new and extensive country with some interest in common with all its parts, yet with local conditions so diverse as to necessitate separate treatment’.
- 60.
This advantage was noted by Cramp, above n 59, p. 112 who stated that federalism allows regional governments to specifically address local issues, so citizens are represented at both a local and a central level. This representation leads to a better representation and greater involvement of the citizen in political issues.
- 61.
See, for example, Cramp, above n 59, pp. 111–112 who stated that federalism promotes ‘internal peace and economic progress’ by uniting otherwise separate states, and in doing so: ‘It remedies the narrowness of outlook of provincialism, yet avoids the possibility of a despotic central government.’
- 62.
Twomey and Withers, above n 54, p. 9.
- 63.
Cramp, above n 59, pp. 112–113.
- 64.
Twomey and Withers, above n 54, p. 8.
- 65.
Dicey, above n 23, pp. 167–168. This argument was also raised by former Prime Minister Gough Whitlam, who also argued that Australia’s federal system of government is inefficient: ‘It is possible to advance historical or geographical reasons for having a federal system in Australia; but it is impossible to deny that Australians pay for it dearly in delays and duplication’: Whitlam (1983, 28).
- 66.
See, for example Craven (2004, pp. 74–75). Craven stated that ‘government is not all about economy and efficiency: democracy itself is slow and messy, but we have yet to abandon it in favour of a fast, logical dictatorship. In the same way, if we have a price for the diversity, democracy and independence of the states, we can file the bill under “value”’.
- 67.
Craven, ibid, pp. 74–75.
- 68.
Twomey and Withers, above n 54, p. 13.
- 69.
Cramp, above n 59, p. 113.
- 70.
Ibid.
- 71.
Twomey and Withers, above n 54, p. 12.
- 72.
Twomey and Withers, above n 54, pp. 15–16.
- 73.
Twomey and Withers, above n 54, p. 46.
- 74.
Wanna et al. (2009, p. 9).
- 75.
Ibid.
- 76.
- 77.
For a discussion of the exclusion of the states from initiating the referenda process, see Murray (2012).
- 78.
Moens and Trone (2007, p. 448).
- 79.
Parliamentary Handbook of the Commonwealth of Australia (42nd Parliament) cited in Zimmermann and Finlay, above n 55, pp. 55–56. Zimmermann and Finlay also argue in favour of state initiated referenda as a means of decreasing federal legislative powers (pp. 56–57).
- 80.
I have omitted the territories because the focus of this paper is on state-Commonwealth relations. However, I acknowledge that the territories could also be included in this process.
- 81.
COAG was established in 1992 by agreement of its members, who consist of the Prime Minister, state Premiers, Chief Ministers of the Territories and the President of the Australian Local Government Association. Its role is to promote cooperative federalism through the discussion and implementation of policy issues requiring intergovernmental cooperation, which often culminates in intergovernmental agreements.: Council of Australian Governments, About COAG (18 February 2010) http://www.coag.gov.au/about_coag/index.cfm. See generally, Gallop (2012).
References
Aroney, Nicholas. 2009. The constitution of a federal commonwealth: The making and meaning of the Australian constitution. Cambridge: Cambridge University Press.
Aroney, Nicholas. 2011. Reflections on subsidiarity: European lessons for Australia’s federal balance? Federal Law Review 39: 31.
Blackshield, Tony, and George Williams. 2006. Australian constitutional law and theory: Commentary and materials, 4th ed. Sydney: Federation Press.
Bridge, John W. 1996. Subsidiarity as a principle of constitutional law. In XIV International Congress of Comparative Law, Athens 1994, general reports, ed. K.D. Kerameus, 613. Athens: Sakkoulas.
Bridge, John W. 1999. Constitutions, powers and the doctrine of subsidiarity. The Bracton Law Journal 31: 49–57.
Business Council of Australia. 2006. Reshaping Australia’s federation – A new contract for federal–state relations. Melbourne: Business Council of Australia.
Cramp, K.R. 1913. State and federal constitutions of Australia. Sydney: Angus and Robertson.
Craven, Greg. 1995. The High Court and the states. Paper presented at the sixth conference of The Samuel Griffith Society, Townhouse Hotel, Carlton, 17–19 November 1995.
Craven, Greg. 1999. The High Court: A study in the abuse of power. University of New South Wales Law Journal 22(1): 216–242.
Craven, Greg. 2004. Conversations with the constitution. Sydney: University of New South Wales Press.
de Q Walker, Geoffrey. 2002. The seven pillars of centralism: Federalism and the Engineers’ case. The Australian Law Journal 76: 678–715.
Dicey, A.V. 1926. Introduction to the study of the law of the constitution, 8th ed. London: MacMillan and Co.
Elazar, Daniel J. 1991. Exploring federalism. Tuscaloosa: The University of Alabama Press.
Gallop, Geoff. 2012. The COAG Reform Council: A view from the inside. In Tomorrow’s federation: Reforming Australian government, ed. Paul Kildea, Andrew Lynch, and George Williams, 43–52. Annandale: Federation Press.
Halberstam, Daniel. 2009. Federal powers and the principle of subsidiarity. In Global perspectives on constitutional law, ed. Vikram David Amar and Mark V. Tushnet, 34–47. New York: Oxford University Press.
Hunnings (ed.). 1998. Encyclopaedia of European law. London: Sweet & Maxwell.
Irving, Helen (ed.). 1999. The centenary companion to Australian federation. Melbourne: Cambridge University Press.
La Nauze, J.A. 1972. The making of the Australian constitution. Melbourne: Melbourne University Press.
Lijphart, Arend. 1985. Non-majoritarian democracy: A comparison of federal and consociational themes. Publius 15(2): 3–15.
Longo, Michael. 1999. Subsidiarity and local environmental governance: A comparative and reform perspective. University of Tasmania Law Review 18: 225–246.
Moens, Gabriel A., and John Trone. 2007. Lumb and Moens’ the Constitution of the Commonwealth of Australia annotated, 7th ed. Netherlands: LexisNexis Butterworths.
Montgomery, John Warwick. 2002. Subsidiarity as a jurisprudential and canonical theory. Law and Justice: The Christian Law Review 148: 46–53.
Murray, Sarah. 2012. State initiation of Section 128 Referenda. In Tomorrow’s federation: Reforming Australian government, ed. Paul Kildea, Andrew Lynch, and George Williams, 332–349. Annandale: Federation Press.
Norris, R. 1981. Deakin, Alfred (1856–1919). Australian dictionary of biography, vol. 8 at http://adb.anu.edu.au/biography/deakin-alfred-5927
Productivity Commission. 2005. Productive reform in a federal system. Roundtable proceedings, Canberra, 27–28 October 2005.
Quick, John, and Robert Randolph Garran. 1901, 2002 ed. The annotated constitution of the Australian Commonwealth. Sydney: LexisNexis Butterworths.
Sawer, Geoffrey. 1967. Australian federalism in the courts. Melbourne: Melbourne University Press.
Sawer, Geoffrey. 1975. The Australian Constitution. Canberra: Australian Government Publishing Service.
Turner, Henry Giles. 1911. The first decade of the Australian commonwealth: A chronicle of contemporary politics 1901–1910. Melbourne: Heritage Publications.
Twomey, Anne, and Glen Withers. 2007. Federalist paper 1 Australia’s federal future: A report for the Council for the Australian Federation. Melbourne: Council for the Australian Federation.
Vause, W. Gary. 1995. The subsidiarity principle in European Union law – American federalism compared. Case Western Reserve Journal of International Law 27: 61–82.
Wanna, John., et al. 2009. Common cause: Strengthening Australia’s Cooperative Federalism: Final report to the Council for the Australian Federation. Adelaide: Council for the Australian Federation.
Warren, Neil. 2006. Benchmarking Australia’s intergovernmental fiscal arrangements: Final report. Sydney: New South Wales Government.
Whitlam, E.G. 1983. The cost of federalism. In Australian federalism: Future tense, ed. Allan Patience and Jeffrey Scotts, 28. Melbourne: Oxford University Press.
Williams, John. 2003. The emergence of the commonwealth constitution. In Australian constitutional landmarks, ed. H.P. Lee and George Winterton, 1–33. Port Melbourne: Cambridge University Press.
Zimmermann, Augusto, and Lorraine Finlay. 2010. Submission to the Select Committee on the Reform of the Australian Federation, 19 August 2010.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Evans, M. (2014). Subsidiarity and Federalism: A Case Study of the Australian Constitution and Its Interpretation. In: Evans, M., Zimmermann, A. (eds) Global Perspectives on Subsidiarity. Ius Gentium: Comparative Perspectives on Law and Justice, vol 37. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-8810-6_10
Download citation
DOI: https://doi.org/10.1007/978-94-017-8810-6_10
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-017-8809-0
Online ISBN: 978-94-017-8810-6
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)