Aroney's Introduction and Chapter 1

Introduction: Australia as a Federal Commonwealth

  • The framers of the constitution called it a ‘Federal commonwealth’ when they may have called it representative government or responsible government just as accurately
  • The framers chose to constrict a legislature elected by the people, as the people were responsible for the unity of the federal system.
  • Although, the executive power of the commonwealth would be vested in the queen, represented by the governor-general, the financial powers of the federal government meant that a system of responsible government was likely to emerge, under which the governor-general would exercise executive power on advice of the ministers having the support of the parliament. (As per the British System)
  • The 3 separate chapters for the executive, judiciary, and legislative branches imply (or have been read to imply) a distinct separation of powers between the three.
  • These 3 institutions can be described as ‘federal’ institutions having limited federal power. Further, the const presupposes the existence of the states, treating them as autonomous, self-governing bodies politic that are, as James Bryce put it, ‘more essential to the existence of the commonwealth than it is to theirs’ –the constitution assumes the existence of the states, and implies their independence by not stating ways to govern them etc.
  • The commonwealth also arose out of the majority of the people (people) and the majority of the states (states). It followed therefore that these entities should be represented in parliament. Senate: represents the people of the states, equally. The House of Representatives: represents the people of the commonwealth. (Though the senate actually has slightly less power)
  • For the amendment of the constitution a majority in both senses – people and states - is required.
  • Quick and Garran have observed the constitution, leading them to conclude that the: federal idea pervades and dominates the structure of the institutions (legislature, executive, judiciary etc) in the newly established community. They have identified 4 senses of the term ‘federalism’:

1) In the 1st sense: the primary and fundamental meaning federalism is the idea of the federal compact between states. Here the focus is on the faedus, treaty or covenant by which several independent states agree to form a common political system while retaining their separate identities. The preamble to the constitution alludes clearly to this sense of federalism (appeals to ‘people’ and ‘colony’ or state).

2) In the 2nd sense: the reference here is not to the bond of union between the federating states, but to the new state created by that bond; a federal state, which is of itself a union of constituent states. It refers to the composite entity as a whole: a polity in which the incorporation of states into state is taken to be the very essence of its nature.

3) + 4) the 3rd and 4th conceptions concern the system of government adopted within a federal system. The reference in this respect was not to the state and states, which form the federation, but to the governing apparatus adopted therein. This idea concerns the ‘dual systems of government’ so the idea that different tiers exercise different power. More specifically, the 3rd sense refers to the ‘dual system’ of the governing apparatus. While the 4th sense refers to the federal apparatus only.

  • John Burgess’s argument: He was theoretically committed to the conception of a ‘state’. He claimed a state might only be ‘unitary’. A state may utilize a dual government like in Aus. But the underlying nature of the state was in its unitary character.
  • Such a theory is contrary to the idea of the ‘federal’ in the 2nd sense (the idea that the ‘unitary’ is paradoxically achieved though the individual and separate formation of different states).
  • Quick and Garran could not point to any case in the constitution where the federal nature of the ‘state’ is explained as a formation. Nowhere is the term federal used to refer specifically to Burgess’s idea of a dual system of government in the particular sense in which he meant it. The term of the ‘central’ or ‘general’ is used throughout the constitution but has no real bearing on the federal history or theory (p.6). However on the contrary:
  • the structure and composition of Aus institutions of government (4th sense: the federal layer) were deeply shaped by the fact that they were to be the governing institutions of a federal comm. (2nd sense: union which created the federal) which emerged from the agreement of the peoples of the states (1st sense: agreement to form federal system while retaining separate identities).

The Argument

  • The central argument of the book is that the constitution (its formation, representation and amendment) is influenced by the fact that it is ‘federal’ commonwealth. This ‘federalism’ (not responsible government) was the organizing theme of the constitution (Galligan). This is evident in the 1890s debates, where it was clear: responsible government had to be accommodated within the ‘federal’ and not vice versa.
  • Studying the formation (of the constitution) is an important aspect of understanding the federal design. Formation was complicated and is inherently susceptible to different interpretations. The main being the 1) philosophical, 2) institutional 3) deliberative.

1) The philosophical context is very difficult as there are many competing theories etc. However, it is useful, along with politics and economy, to understand the philosophical underpinnings as they influenced those times and debates re the const. So the const was the product of philosophy and pragmatic bargaining, with each founder out to make the constitution match their philosophical ideals or simply ensure their colony was not left at a disadvantage.

Theory and interpretation

  • The High Court have expressed that the constitution be regarded as a ‘social compact’ whereby the Australian people in exercise of their sovereignty, agreed to form and to submit to a new comm. Government under the Australian constitution –providing the justification and basis for the political order thereby created.
  • The constitution is binding because the Aust people ‘ratified’ it by popular referendum, and possess the power to amend the referendum by the procedure contained in s 128.
  • McGinty v WA, Gummow noted: given the special adaptation of a representative government in the federal system, where does ultimately the sovereignty reside? … Authority resides within the body that has the power to amend the constitution. And s 128 says: …by all the electors and majority of the states… can only then the const be amended. Therefore, as stated by Gummow: broad statements concerning sovereignty as being that which is conferred upon the people, are to be understood and qualified by the fact that the states too play a significant role. Further, s 15 of the Aust Act allows it to be amended without the electorate or the ‘people’ rather, by plain legislation.

Chapter 1: Conceptualising federalism

The conventional approach

  • This approach is popular with Bogdanor, Wheare and Bryce. The conventional approach defines federalism as a ‘division of power’ between the central (federal) and regional (state) governments.
  • Government power is divided between 2 territorially defined levels of Government, guaranteed by a written constitution and arbitrated by an institution independent of the 2 separate spheres of Government, usually a court of final jurisdiction (in our case, the High Court). It is popular due to its simplicity and scope.
  • The term also has significant limitations:

1) Political scientists have pointed out: it fails to describe the way power is allocated/ how the system functions. The level of responsibility divided according to the 2 coordinate levels of Government - they prefer the view that federalist Government are like a marble cake in that the responsibility is of multiple layers and keeps shifting according to negotiations, compromise etc.

2) As it is explained in purely juristic terms the term has limited explanatory power. This is due to its level of abstraction, which is a basic judicial allocation of power. This provides no explanation of precisely which competences will be allocated to which level of government and, it does not explain the ways in which this distribution may be effected. So conceiving federalism as a mere division of powers provides no insight into the question of whether the competences possessed by each are ‘enumerated’, ‘residual’ … or understood as ‘delegated’, ‘transferred, ‘reserved’ or ‘divided’ (as they claim them to be). This can lead to judicial confusion.

3) To refer to a division of powers is to tacitly enforce the view that the power in question was originally a kind of ‘unity’, which was subsequently been divided. This presupposition of a unity betrays the relationship between the idea of division of power theories and theories of sovereignty, understood as a unitary locus of putatively supreme, unlimited government power. Dicey, Bryce and Wheare were influenced by the idea of a original unity and division as they created their conceptions against the backdrop of the UK and Irish claim of independence. To understand all systems in this way is to underplay the distinctions between the cases. A particular federal system tends to reflect the process by which the federal system came into being – there can be no ‘typical’ federal system.

4) Another failure is the inability to highlight the difference between federation and confederation. 5 factors usually distinguish the 2:

1. Formation: the original foundation from which the federation came into being.
2. Representation: structural features of the representative institutions of the general government
3. Configuration of power: the manner in which power is delegated between the regional and general
4. Operation of federal law: the capacity of the federal government to make laws directly binding upon individual citizens
5. Amendment: the manner in which the const may be amended
The conventional approach deals only with 1 of these: the allocation of power.

Federal or National?

  • Madison’s interpretation of the US constitution had a profound influence upon the Australian const. Madison stated that: to ascertain the real character of a government it may be considered in relation to the:

a) Foundation from which it was established: this corresponds to the ‘formative basis’ of the const: drafting, ratification…
b) Sources from which ordinary powers are to be drawn: corresponds to the representative institutions adopted under a federal system, in particular the structure of the legislature, the executive and judiciary.
c) Operation of those powers: direct authority of the fed government over individual citizens (distinguished from the confederal)
d) Extent of them: supremacy of the federal government within its sphere of ‘enumerated objects’
e) Authority enabled to make changes to the const (self explanatory: amendment)

*equal weight given to each factor.

  • Note the similarities between this list and the above one – the character of a government ultimately being whether it’s a confederation, federation, or something else entirely
  • Madison was constrained by terminology as confederal and federal were used interchangeably (unlike in modern terms) and so he contrasted the con/federal with the national. With this he concluded that the US const was a composition of both the con/federal and national. He referred to the federal (as he viewed it then) as possessing:

1) A group of states assenting a common covenant
2) Fed government derive powers from a group of co-equal societies
3) Fed government will operate with states in terms of their political capacities and not directly upon citizens
4) Federal system to be marked with a limited jurisdiction over certain enumerated objects only
5) The several states are to retain the residuary and inviolable sovereignty over all subjects
6) Const to be amended by concurrence of each state

  • In modern times, the above characteristics capture the notion of confederation. Martin strongly supported this model. It emphasizes the compact nature or the alliance between the states stemming from the etymological Latin meaning of federal as an alliance.
  • On the other hand the more nationalistic nature, he believed, would include:

1) The founding of a common const by the assent of the people as an ‘aggregate’ of a nation.
2) This would include the representation of an entire population
3) Its laws would be enacted directly upon citizens
4) Authority would therefore be supreme
5) Local authorities would be subordinate rather then independent
6) The supreme authority under a national const would rest with the ‘majority of the people of the union’ as they could amend the constitution.

  • In modern times, this is a national system. Wilson agreed with his view.

Compact or Constitution?

  • Wilson and Martin did not get their view, what was drafted in the US was a mixture of both. A composition of the federal and national characteristics.
  • Foundation was compact in that the various people from the independent states agreed to its formation. States were equally represented by the Senate and the role of the senate in the amendment of a const. however, national elements were also present; hose of reps existed to represent the people in the aggregate, fed laws prevailed over state inconsistent laws and the fed could enforce its laws upon individuals. *This composition is now called federation.
  • Tucker and Calhoun have tried to explain the US const as the ‘compact’ between he states as determinative, despite Madison’s careful observation of the compact. They claimed the assent of the states and their ability to exist allowed them to co-exist as sovereign agents with independent and distinct identities. The peoples of the states thus possessed ultimate sovereignty to nullify unconstitutional fed laws. But both writers adopted Madison’s explanation: Tucker: the constitution partially a national ‘social compact’ and Calhoun: federal government not a confederacy. But both believed the emphasis was on the compactualist view.
  • The weakness in such an explanation:
  • Failure to explain the ‘national’ aspects
  • The house of reps
  • Direct federal authority over individuals
  • Authority of the supreme court
  • The amending formula of the constitution
  • Story and Burgess attempted to explain the US const in national terms.
  • The const was established, not by states, but what the people understood as in the aggregate.
  • Story argued that the const was supreme law, not a mere compact as it was ordained ‘We the people…’
  • Burgess believed that the federal form of government meant simply a division of powers, nothing really impacted on the nationalistic nature of the government.
  • Dicey and Wheare agreed with this view: the division of powers meant that previously the power was unitary.
  • Story realized he needed to moderate his nationalistic account so he addressed:
  • That the constitution was a compact, ratified by the people in each state. But he rejected that it was a mere league/confederation
  • Burgess identified how this may be the case by stating that the agreement was between the peoples of each states however, when the constitution came into being sovereignty mysteriously shifted from peoples to people. We the people …
  • At a level of abstraction Burgess’s theory was correct but could not explain: the federal aspects identified by Madison such as the a) senate b) the configuration of power and c) the amending formula. Burgess (weakly) explained these federal features as ‘relics’ and democratic errors.
  • By contrast Story followed Madison: ‘partly federal, partly national’, as a compound republic. He stated that:

“every district or territory ought to have a proportional share of the government, and among the independent states bound together by the simple league there ought, on the other hand, be an equal share in the common councils whatever might be their relative size or strength… proportional and equal representation”

  • Both the nationalists (Story and Burgess) and compactualists (Calhoun and Tucker) had to confront Madision’s careful empirical study as in their extreme forms; neither nationalist nor compactual approaches could adequately account the modern federal constitution. The reason for this is the idea of sovereignty being present in both explanations either tacitly or explicitly.
  • compactualist: states are sovereign
  • nationalist: the federation is sovereign
  • However, federations persistently resist the analysis in terms of sovereignty due to the nature of their distribution/transfer of powers.

Federation or confederation?

  • Late 18th and the mid-20th century witnessed a general decline in the compactualist approaches to federalism. For example, the American civil war involved the conflict between the compactual and nationalist interpretations of the union: resolved in favor of the nationalist.
  • Australia was concerned with the rights of the states around this time (approx 1860s) but the framers wanted an indissoluble federation. Nationalist interpretations tended to prevail, with the compactualist being discarded as constitutional curiosities.

Federation vs Confederation

  • Formed under a constitution to which the people as a whole consent vs Formed under a unanimous compact between the independent governments of the states
  • Sovereignty inheres in the nation as a whole vs States retain their separate sovereign status
  • The sovereign people divide the plentitude of sovereignty between the state and the fed vs States delegate limited powers to the fed legislature leaving to themselves an inviolable sphere of reserved powers
  • Citizens of the federation vs Individuals are solely or primarily citizens of their respective states
  • Legislature represents the people vs Delegates, that represent the states in the legislature, are bound by the states’ instructions
  • Amending laws will require the majority; amending constitution is more rigid (p.30) vs Amending laws will rely on the unanimity
  • Has direct and binding power over individuals vs The confederal government has no executive power over individuals without the concurrence of the state
  • A dichotomy between federation and confederation overlooks a number of important continuities and similarities between the successive governments of Canada, the US and Australia. These continuities mirror the partially federal features Madision had identified.
  • Contrary to nationalist interpretations, federations such as Aus and the US are typically formed out of pre-existing relatively independent states, which consent to the formation of a federation. However, unlike confederations, in a federation such consent involves the ‘people’ – a decidedly non-compactual feature; however, this being expressed by several peoples organized into sates- a feature that is more compactual than national. Further, a fed system provides representation of both the states (compact: senate) and people (nationalist: house of reps). And amendment of the constitution involves the consent of both.
  • Finally, in such federation power is delegated or granted by the pre-existing states to the fed, which retain the unexercised and ungranted residue – rather than as a division of unitary sovereign power. *Thus it is more complex than a mere distinction between the fed and confederal. Especially in the formation and amendment stages.

Nationalist approaches (towards modern federalism) these accounts state that the sovereignty is derived from the peoples as a whole. However, it was the various delegates, in the formation processes (for e.g. Aus etc), which made it possible—thus an agreement from the people of the several states was necessary. Also the people as a whole do not delegate powers between the states but the people of the states.
Compactualist approaches (towards modern federalism) these try to force the modern federalism into a more compactual mould. (**This theory also reinforces the dichotomy between the compact and federal). This is done by: underplaying the degree to which the modern federations provide for a unified people, governed by a consolidated federal government, itself subordinate to a binding constitution.
*A more balanced and nuanced approach is needed for the explanation of the modern federation.

Avoiding sovereignty

  • Shortcoming of both the compactual and nationalist analysis stems from the fact that both have a rooted commitment to the idea of sovereignty. The way out of this impasse is to reconceive federal systems in a way that avoids the use of sovereignty as a conceptual device.
  • Modern usage of the word is traced to Hobbes and Bodin. For these writers, sovereignty involved the internal sovereignty of all institutions, corporate bodies and regional powers, and an external sovereignty against imperial, papal and other authorities. It involved the absolute power to make law, exercised over a political community by a discrete political institution, and a freedom from any other law making power: unity, autonomy, ultimacy.

a) Unity: sovereignty was a singular entity, residing with a particular person or institution.
b) Autonomy: self-rule or law, sovereign to govern all things within the jurisdiction (internal sovereignty) and does so to the exclusion of others (external sovereignty).
c) Ultimacy: all other jurisdiction is derived from the original sovereign.

  • Thus, sovereignty had constrained the ways in which federalism is conceived.
  • For Austin: federalism could consist of 2 kinds:

1) A mere league or confederation
2) Fully sovereign state that happened to allow local governments significant freedom

  • Natural rights theorists such as Locke and Grotius: opposed the idea of sovereignty residing within the state, but the rights community they conceived was of unitary terms.
  • The Lockean idiom of the “social compact” and the Blackstonian doctrine of “parliamentary sovereignty” influenced nationalists such as martin and Wilson. But the question remained: where did sovereignty reside (state or fed)? Burgess reasoned according to similar lines.
  • Therefore, it is necessary to reconceptualise the integrative federal systems in a way that avoids the ascription of sovereignty to a particular political community, be that the individual states or the fed or nation as a whole. This means: conceiving of a organization in which there are multiple loci of partly independent and partly interdependent political communities, bound together under a common legal framework. This would account for the diverse features of a modern federal system by escaping the reductive tendencies.
  • Montesquieu (influencing Madison) defined what he called the ‘confederate republic’ as an ‘assemblage of societies’ which of itself is a society. Bryce, who influenced the Aussies had a similar definition. Both these definitions underscore the 4 senses identified by Quick and Garran (above):
  • Founding compact or agreement (1st sense)
  • A federal state which is a community of other states (2nd sense)
  • The states continue to be communities, partially governing and governed by the fed and in turn form part of the fed which is also partially independent and partially not. Implying a ‘dual system of government’ (3rd sense)
  • Consisting of both state and fed governments (4th sense)
  • Althusius’ work has remained one of the most influential earliest statements on modern federalism. He supported the ‘community of smaller communities’ view, bound together by a common framework. He rejected Bodin’s absolutist sovereignty. He stated:
  • “the subject matter of politics is therefore association, in which the symbiotes pledge themselves to each other, by explicit or tacit agreement, to mutual communication of whatever is useful and necessary for the harmonious exercise of social life”
  • “Human society develops from private to public association by the definite steps and progressions in smaller societies …”
  • ‘Universal association’ occurs where ‘many cities and provinces obligate themselves to hold, organize and use and defend … the right of the realm’.
  • Every smaller society, such as a city or a province, is a genuine political community, with its own communal life and sphere of rights: but societies are united by covenant to form a wider political community so the ‘majestas’ (wider association of the realm) is also expressed as ‘consent and concord of the associated bodies’. These bodies were subject to the divine > ‘lex fundamentalis’.

Conclusion

  • A rejection of sovereignty allows for a closer analysis of the empirical characteristics of fed systems. Enabling a more precise identification of the many ways in which formative processes structured, and of the influence of those processes on the representative institutions, configurations of power and amending formulas actually adopted under federal constitutions. A more nuanced and specific analysis is enabled (through ditching sovereignty) along the lines pioneered by Madison.