The Constitution and Federalism Assignment Help
Catherine Strong and John Paul Healy
In Australia, we have a Federal system, which means there are a number of tiers of government that have different areas of authority to each other, and that Federal system is governed by our Constitution and Federalism. In this lecture we are going to look at what both Federalism and Constitutionalism mean, as well as examining what these things have meant in an Australian context. We will see that the interpretation and application of our Constitution has changed over time, leading to shifts in the power relations between states and the commonwealth – mainly in favor of the commonwealth.
Constitution
What is a constitution?
Heywood defines it as “a set of rules that seek to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and the individual. Constitutions thus lay down certain meta-rules for the political system; in effect, these are rules that govern the government” (key terms, 196)
Maddox emphasizes the way constitutions are used to limit government power, to lay down rules about where government power can be exercised so it cannot intrude into areas that should be left to individuals to manage. However, remember that constitutions only ‘work’ when they are underpinned by a system where its authority is recognized by all (eg, if you have an authoritarian government and they ignore everything the constitution says then it becomes meaningless).
Constitutions can be codified or uncodified. Codified constitutions are written documents that contain the highest law in a state – the law under which all other laws have to be made. This is the type of constitution we have here. The only democracies that now have uncodified constitutions are the UK and Israel – ie, their constitutions are not written down anywhere but come from laws (statute and common), conventions and various other sources.
With a codified constitution, parliament is bound by this document and there are courts that can overturn laws that are made if they don’t adhere to it. This is not the case with an uncodified constitution – the british parliament can make whatever laws it likes and ultimate authority rests with it.
The Australian Constitution
Right, so lets have a bit of a look at what our constitution says, shall we?
It’s divided into 8 chapters.
Chapter 1 – is all about the Federal Parliament. It sets out things like the 2 House structure of the parliament, establishes the authority of the parliament to make laws, and details how representation will be achieved – eg, gives details about how often elections will be held, how many Senators and members of the house of reps there should be, how they should be allocated to the different states etc In this chapter, section 51 is particularly important, as it sets out very specifically the areas over which the Federal parliament is to have authority – for example,
(i.) Trade and commerce with other countries, and among the States:
(ii.) Taxation; but so as not to discriminate between States or parts of States:
(iii.) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:
(v.) Postal, telegraphic, telephonic, and other like services:
(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.
(ix.) Quarantine:
(xi.) Census and statistics:
(xii.) Currency, coinage, and legal tender:
(xv.) Weights and measures:
(xix.) Naturalization and aliens:
(xxi.) Marriage:
(xxiii.) Invalid and old-age pensions:
(xxiiiA.) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:
(xxvii.) Immigration and emigration:
(xxix.) External Affairs:
Chapter 2 – is about the Executive, and ostensibly gives a lot of power to the GG. Does mention Ministers, and says they have to be members of parliament.
Chapter 3 – establishes the judicature. “Section 71 provides that the judicial power of the Commonwealth is vested in the High Court of Australia and other federal courts established by the Parliament. Other sections deal with the appointment, tenure and removal from office of judges of the High Court and other courts. Section 76 gives power to the Parliament to determine the jurisdiction of the High Court” (From Australianpolitics.com)
Chapter 4 – “This chapter deals with finance and trade. One of the most important sections is Section 83 which provides that no money is to be drawn from the Treasury except under an appropriation by law. Other sections deal with customs duties, requiring that they be uniform throughout the Commonwealth. Section 92 requires that trade and commerce amongst the states shall be absolutely free. Section 96 empowers the Commonwealth Parliament to grant financial assistance to the States. Section 105A, inserted by referendum in 1929, deals with the taking over by the Commonwealth of States’ debts.” (Australianpolitics.com)
Chapter 5 – is about the states. “This chapter deals with the States, providing for the continuance of their constitutions, parliamentary powers and laws. Section 109 provides for Commonwealth law to prevail over State law, but only in those cases where State law is inconsistent with Commonwealth law. Other sections prohibit the States from coining money, raising armed forces or discriminating against the residents of other States. This section also requires that the Commonwealth is to protect the states against invasion or domestic violence.” (australianpolitics.com)
One thing to note in this section is the difference between the way the powers of the states and the powers of the Commonwealth are laid out. In the case of the states, there are a few things that it is set out that the states specifically cannot do – with the commonwealth it’s the other way around, where the things they CAN do are specified. For a long time the courts interpreted this as meaning that the states had a lot of ‘reserve’ powers, ie, if they hadn’t been specifically told they couldn’t do something then it fell within state powers (states can legislate on matters to do with the powers given to the commonwealth, but in cases of conflict the cth trumps). Over time, though, this has been one of the things that has come to be interpreted differently to give the Commonwealth more power – eg, in regards to income tax, which initially could be collected by Cth and States, but since the 40s has only been collected by the cth then distributed to states.
Chapter 6 – lays out the mechanisms by which new states could be created
Chapter 7 – is a ‘miscellaneous’ section that has some stuff about the powers of the GG, where parliament should be located, and used to contain s127 – “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted” – which was repealed by referendum in 1967.
Chapter 8 – is about how the constitution can be changed. “It provides that proposals for constitutional alteration be initiated by the Parliament and approved in a referendum by a majority of voters Australia-wide and a majority of voters in a majority of States.” (australianpolitics.com)
Although in Australia we have a codified, or written, constitution, it cannot be properly understood by simply reading what is written in that document. As you can see from the outline just given, the Australian constitution isn’t all that detailed, really – and important elements of the way we know politics in this country works are simply not there, eg, the Prime Minister. Maddox notes that the constitution cannot be understood without conventions being taken into consideration also. In Maddox, these are described as “non-legal rules regulating the way legal rules should be applied”. Conventions flesh out the constitution, give form to all the procedures that need to be in place to ensure a country can actually be governed – all the day to day things.
May seem worrying that lots of the things that are used to make decisions about how we are governed are not written down anywhere, but if you think of the British system where conventions are even more central, it is obviously an effective system of government. One reason codified constitutions have sometimes been criticised is that codification makes change and flexibility so much more difficult – as has been seen in Australia with the failure of so many referendums. However, a combination of a relatively undetailed constitution with conventions that are more easily changed is a compromise of sorts
The other thing we need to take into consideration to understand the constitution is how it has been interpreted by the judiciary. As I noted above in regards to state versus cth powers, this interpretation can change over time. Because the constitution is so lacking in specifics about so many things, there’s a lot of room for high court judges to manoeuvre in their interpretation. Sometimes they go for a more literal meaning, and at other times they try to decide what the intention of the writers might have been. The example in the Ward article relates to updating things like federal control of post or telegraph to now include Television.
Federalism
The Australian Federal system under the constitution gave a large amount of autonomy to the States and was influence by the American System; this is why the Australia political system is sometimes referred to as Wash-Minster – because it has aspects of the Westminster system from England and the Washington system from America.
Advantages of federalism
- Limits government – one of the main justifications for having a federal system is that it ensures power will not be held in one place only, and as such is part of the ‘checks and balances’ that are needed in a representative democracy
- Provides more opportunities for representation and for political claims to be heard – a federal system means people are not just given ‘one shot’ at having a voice, they are represented more than once. It also gives people more places to access or enter the political system, whether to voice concerns about issues or to actually enter politics themselves.
- Emphasis can be placed on local issues – that is, there is more space for more issues to be considered, and some of these issues can be ones that concern only a small part of the population in one area only. Most local issues would not get mentioned in federal parliament, because there just isn’t time or motivation in that arena for all the things that concern everyone to be discussed. State and local governments provide arenas for these sorts of things. This is also good because it prevents ‘majority rule’ – on the one hand, that might seem like the point of democracy, but there’s also a need to ensure the rights and interests of minorities aren’t being ignored or trampled over. In Australia, what is best for the majority will usually involve what is best for people on the Eastern coast, since that’s where most people live. What’s best for people in Tasmania, or Perth, may be completely different, and in a federal system their needs do not always have to come second to what people in Sydney
- It provides greater scope for innovation and experimentation – new ideas or programs can be tested in parts of the country and if they are found to be useful then they can be adopted elsewhere, rather than having to implement large-scale programs that may not turn out to be very good. One example of this is random breath testing – it was trialled in Victoria, and when other states could see the benefits it was bringing in terms of reducing drink driving and associated deaths, they also started doing it.
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