LAWS1116 Week 3 Aroney readings

Aroney's The Constitution of a Federal Commonwealth
Week 3 readings: Ch 1-4, 9-10

NB: as brief as possible, read chapters for endless theoretical discussion and detail ;)

Chapter 1: Conceptualising Federalism

  • Conceptualising is difficult, conventional approach states that defining feature of a federal system is the existence of division of power between central & regional gov
  • Basic idea: political system in which gov power is divided btw 2 territorially defined levels of gov, guaranteed by written Const, arbitrated by independent institution
  • Limits:
    • Fails to describe actual operation
    • Abstraction does not provide precise explanation of allocation of functions
    • Underplays distinction btw autonomous political communities who have integrated & formerly unitary state that has split gov powers among regions
  • Fails distinction btw federation (5 factors distinguish:
    • Formation-foundation of fed system
    • Representation-structural features of rep instit
    • Configuration of power-manner of allocating power to general & regional gov
    • Operation of fed law-capacity to make & execute law
    • Amendment
  • …& confederation-conferred powers upon common instit
  • thus, there are a number of features the definition overlooks

James Madison:

Federal Concept

  • federal refers to act by which several distinct & independent states would unanimously assent to proposed
  • fed gov would derive its powers from those states as political & co equal societies, equally rep in fed gov
  • fed gov only operate through states onto citizens
  • limited juris over specified functions, states retain sovereignty over all else
  • fed const to be amended only by unanimous state assent

National Concept

  • considered that national const would be foUnded on people’s assent-as one aggregate nation-decision of majority forms into whole people
  • nat gov composed of representative, laws operate directly on citizens, scope is over all people, all things, authority thus supreme
  • therefore supreme authority rests with majority of people, as a whole, can amend Const
  • Neither compactual nor nationalist approaches can account for modern federations-which combine fed & nat elements
  • Nationalist approach prevails
    • Confederation: several states retain sov status. They delegate limited powers to fed leg & retain inviolable sphere of power. Indiv are citizens of states, who are equally represented in leg, decisions by unanimous votes. No exec power over indiv & coop of states req for federal decisions
    • Federation: formed under const to which people as whole nation consent. Sov inhere in the nation as a whole, power is divided between state & federal gov, indivs are primarily citizens of fed, members of fed leg are elected proportionally. Voting in leg is by majority, amendment for const process more rigid. Laws of fed gov executed directly on indiv.
    • Similarities exist w/I formation, representation, config, operation & amendment→more complicated than the strict division above
    • Both compact & nationalist theory’s have weaknesses, more balanced conception necessary


3 important elements:

  1. Unity-resides in particular instit-it is indivisible
  2. Autonomy-self-rule, implication of things subject to authority & those not. Gov w/I juris & independently of others
  3. Ultimacy-orig & absolute source of rule, all other authority w/I is derived from & subject to

Avoid sovereignty, instead conceive political community-partly independent, partly interdependent-bound together, common legal framework —> accounts for diverse features of mod federalism.

By referring to political communities in this way it implies they will exist as (partially) independent & self-governing, simultaneously part of federal state which is also (partially) independent and self governing. This implies then a dual system of gov, consisting of both state & fed elements, which can then account for ‘division of powers’ (theoretically).
W/o sov, can analyse more widely about formation & nature of federal systems.

Chapter 2: Reframing The Analysis

Influence of formation affects representative institutions & config. of power —> then amendment processes


  1. Integration of previously independent political communities; or
  2. Disintegration of consolidated nation state
  • Aus was disintegrative-devolution of Imperial power & integrative in sense that states agreed to federate
  • Structures are highly similar, it is the interpretation that is affected

Formation involves 4 processes:
i) structuring
ii) drafting
iii) ratification
iv) enactment


  • treaties/conventions formed by exec agreement
  • confederation depend on legislative agreement
  • integrative fed agreed to by popular agreement through conventions/referenda
  • In aus, formation was structured by each state, ratified on unanimous agreement, equal votes (through leg, conventions, referenda). Colonies agreed to drafting process of majority vote-and legislatively committed themselves. So unanimity is typical characteristic of structure/ratification of formation of integrated federations.

Representation & amendment:

  • formation, representation, amendment can be regarded as making law
    • formative-constitutional law that binds the people of the states
    • representative-usually req unanimity, but w/I fed system, making & enforcement is issue, not constitution itself. General law easier to be amended, processes for entire system far stricter. Level of political integration is higher in representation than formation.
    • Amendment-more difficult than enactment-perhaps even as stringent as formation (since federal pact is at stake)-people have committed themselves to Const so it is more majoritarian than formation, less so than general law

Rigidity in Const is essential to integrity of fed system, provision of rigidity is federal in character as well as:

  • need for representation of the people to amend
  • structure of bicameral legislature (eg H.o.Reps is state’s house)
    • Notes that confederations tends toward unanimity for decisions (ranges from loose to tighter-unanimity to special majority)
    • Federations have more significant move toward majority rule (discusses appointment of leg, structure of houses, election of MPs, composition of exec)
  • Aus has tendency to nationalise exec gov-because under parliamentary gov, the exec in power has support of majority in house and thus can guarantee supply. Founders recognised this, granted power to Senate to veto supply bills –and thus holds gov to account.
  • In federations, for amendment, decisions range between unanimity (btw states) and majority (people of nation)
  • To amend rep of states req ratification by majority of voters in nation & majority of voters in a majority of states—thus constitutional provisions may not be changed unless near-unanimous agreement

Formation, Representation & Amendment

  • For formation, representation & amendment, concepts of unanimity-majority & flexibility-rigidity reoccur
  • Process of formation affect structures & amendment procedures
    • Formative process influences concept of representation. Approach to these effects amendment process.
    • 2 interpretations of this influence
      • those whose interests are favoured by formative basis of const will use that power to preserve them
      • normative perspectives motivating majority of frames dictates structural features for representation & amendment procedures
  • So they either seek to maintain power or continue their reasoning
  • Regardless, influence occurs-goes on to discuss USA, Canada, Aus Consts as example
  • Persistent theme in Aus is fundamental decisions made by direct elections & popular referendums rather than leg & special conventions→favour direct democracy-at least for critical points of formation
  • (delegates were chosen by legislatures to refine details in conventions)
  • s15 Australia Act provides that Aust Acts can only be repealed/amended by Act of Aus Par passed at request/with concurrence of all states
  • thus the unanimous agreement of Cth & State Par in Aus Act was then adopted as means of amendment—Aus Acts depend on unanimous leg agreement as basic principle
  • in this way formative basis shaped amendment formula

Formation, Representation & Config of Power

  • relationship btw formation of fed system, representative structures they adopt & allocation of gov power btw various levels
  • was understood that states conferred specific heads of power to federal gov, the rest remained reserved and shall continue →thus concept is of pre-existing, self governing states agreeing to form federation to which specific powers are conferred
  • thus formative process influences, just as assumptions embedded in that process also shape leg & exec config or powers


Recurrent relationship btw

  • modes of formation of federation
  • representative & amendment procedures
  • config of power arrangement

Also tendency for:

  • formative processes of federal system to be grounded in unanimity
  • representative systems to utilise majority voting
  • amendment procedures in btw unanimity & majority

The relationship btw form, rep & amend influences the institutions & amendment formulas adopted later. That relationship leads to formative federation process which produces balance of federal & national features.

Chapter 3: Federating Australia

Federal for practical & philosophical reasons

  • colonies had self-gov since 1850s, had representative instit etc→akin to sovereign states in own right, wouldn’t have relinquished that power
  • only would federate if they could continue as autonomous, confer only specific powers on fed gov
  • needed great deal of compromise to reconcile representative & responsible gov under imperial Crown & Westminster Parliament-as well as notions of responsible gov, sep of powers, & federalism
  • huge range of influences, notably Madison, Bryce, Freeman, Dicey, Burgess

James Madison

  • was wish to ground formation of US Const on sov of the people –preamble Const with ‘We the people’. Madison observed const was fed not nat, the people under state leg were to ratify const (not as whole people). Also, ratification depended on unanimous consent of states-not vote of majority.

Representative structures were then both fed & national:

  • Federal because Senate derives power from states as political equals
  • National because H. o Reps chosen by people in proportionate arrangement
  • Combination for election of president –state by state, voting as co-equal societies & in prop to population
  • Amendment also combination-majority of people, proportional to states

James Bryce

  • Most prominent. Found most striking feature was double gov, double allegiance, double patriotism.
  • US Const was compromise btw contradictory propositions-national & state sov. States gave up some sov, but still retained orig powers of indep gov & organisation.
  • Defining characteristic of federalism was existence of fed exec auth over individ citizens, not ultimate sov of people of the entire nation.
  • Fed const was not to be ratified by Congress (nationalist interp) nor by state legis (compactualist interp) but by peoples of the states (Madisonian)
  • Key feature was gov structure reflected nature of Cth constructed out of smaller Cths→thus senate represents states of the Union as separate commonwealths, thus essential to fed scheme
  • Problems (weakness of fed auth over internal amtters, lack of coherent policy direction, local resistance to national intervention, liability to civil war and secession (break away from union), liability to faction, complexity of law & admin) but benefits outweighed these
  • Defended it as ‘Commonwealth of commonwealths’→united them without extinguishing their separate admin, legis & local interests

Edward Freeman

  • Fed gov was ‘compromise btw 2 opposite political systems’, was a union of component members, more than an alliance, less than a consolidated state.
  • In ‘perfect form’, members would be sov in the sphere concerning them alone, yet subject to common power in those matters concerning the whole body of members
  • Held that this division of sov was essential to federal ideal
  • Advocated an integrative model-union of independent states, not division of united territory

Subdivided federal systems in terms of treatment of fed exec power

  1. Confederated states: fed power represents, applies only to govs of member states
  2. Composite state: gov of fed represents & acts directly upon indiv citizens

His expression of ideal fed gov influenced Aus framers –in that fed gov united the strengths of the systems of independent states with the strengths of large states. This reinforced the ideal that Aus aspired to but in a concrete way-elaborated benefits:

  • enhancement of political participation
  • decrease in local party disunity
  • increased military capabilities of large territorial state

Thus his writings supported 3 vital principles of Aus federation

  1. local self gov
  2. open markets
  3. mutual defence

Also influenced idea of federalism at local-state levels as well as state-national→reinforces integrative federalism where smaller bodies (towns, cities etc) are constituent elements of larger bodies politic.

AV Dicey

Criticised as ultra-legalistic, conforms to view from w/I law that defining feature of Aust fed (& most signif aspect to HC interpretative task) is division of powers between fed & states.

Central claim: reconciliation of unity & diversity in fed is achieved through division of powers. Terms of division must be set out in supreme rigid const, binding on both nat & state govs, interpreted by independent judiciary.

Thus fed legislature is subordinate law-making body, whose statues are invalid if beyond constitutional authority. Tendency of fed is to limit action of gov on every side & split strength of states among coordinate & independent authorities. This is the essential distinction btw federal & Unitarian systems.

Also recognised the integrative origins & influence of formative process on gov institutions & amendment procedures adopted later. The desire to federate, but retain independence, fixes the characters of federalism. The foundations are a complicated contract, the constitution is akin to a treaty. 2 aspects of his theory of federalism:

  1. integrative idea of Commonwealth of commonwealths
  2. division of unitary sov power into smaller units→fed & states

Some conception of sovereignty emerged-powers divided so federal & state govs are subordinate to supreme Const —> controlling idea is sov and its incidental matter, subordination. Thus Dicey defines fed by reference division of power, supreme const & judicial review.

John Burgess

Exclusively nationalist: foundation relied upon ‘nation’ as population of ethnic unity inhabiting territory of geographic unity. Nation state is strongest form of modern political organisation. Embodies balance btw ‘universal empire’ and frictions btw diverse communities. Internally also strikes balance btw central & local gov.

State is sovereign, possesses absolute power over individuals w/I territory. In its highest form, the state is ‘the people in political org’, democratically embodied in sov of majority.

The state creates its gov under a const, but is not subject to that const since it is sov in essence, unitary in form: meaning, state can be 2 govs, but cannot be 2 split states in same territory. So a confed is union of states created by treaty, whilst fed is dual system of gov under common sovereignty.
Process of formation means sovereignty is transferred from many states to a unitary state. Whilst some powers may remain in states, the sov state has capacity to alter that.

  • thus sov central again, controls conceptualisation of formation, gov institutions, & amendment procedures. Problems with sovereignty leds to some arguments that the theory doesn’t rebut very well (see p99). Still, as counterweight to the more prevalent theories, it was influential in that way.
  • he argued that fed was formed through assertion of sov by people of entire nation. Yet in reality, the voters ratified the Const. this formative process then altered all that was to follow-can be seen as opting for Bryce’s Commonwealth of commonwealths rather than Burgess’s unitary conception of fed state.

Chapter 4: Australian Appropriations

The ‘federal state’ (acc to 5 key theorists, Ch 3) refers to the new state arising from the bond of union btw the existing states-which are not destroyed-thus a duality in the State itself is created-divided sovereignty, dual citizenship.
Huge range of diversity in framers thinking, yet tended toward common concepts. Full range of approach can be captured by 10 thinkers- Inglis Clark, Baker, Griffith, Barton, Quick, Garran, Kingston, Deakin, Isaacs, Higgins.
To appreciate process of compromise/debate in formation of const, refer to intellectual context-all contributed in some form (treatise, commentary, draft const). This group not all inclusive yet sufficiently representative of principle influences & perspectives.

Thomas Just:

  • Leading Facts written specifically for delegates, highly significant & relevant
  • Claim: American Const est under similar conditions to those which should mark formation of Aust Const
  • In justifying using the American example, uses 3 questions:
  1. How should q of fed be approached
  2. What are the possible modes of federation?
  3. What is true ‘character of American Const’?
  • Underscored advantages of 1 strong gov, able to move on uniform policy, harmonise & assimilate each part of federal commonwealth, benefit of foresight & precautions to each
  • Efficiency argument arose from breakdown of inter-colonial negotiations as each demanded that decisions be made unanimously and executed separately in each colony
  • Fears of centralisation were rebutted with necessity of majority decisions at federal level, not unanimous

T. Just sought to show:

  • Necessary to have strong fed gov, will of majority prevails
  • Such gov first formed with consent of colonies as independent bodies politic
  • Fed essentially an assembly of states which is simultaneously itself a state
  • Constituent members entitled to separate rep in instit of fed gov & hold an exclusive sphere of sovereign power over own internal affairs
  • Proposed Const was combination of fed & nat elements (see Madison, 5 components)

Andrew Inglis Clark

  • In US, voluntary union led to delegation of specific powers, reservation of remaining
  • While states not sov, they performed more functions than American states had→appropriate to follow US scheme:
    • Senate rep states equally, H. o Reps formed prop to pop
    • delegation of specific powers, reservation of remaining
    • fed & state judiciary separate, but with appeal jurisdiction
    • state governors appointed separately to fed-ensuring independence)
    • presumed continuance of cabinet gov & dependency on empire→expressed doubts about resp gov, still thought dependency would inhibit fully republican system, left it to convention to solve
  • his draft const used as basis for the one emerging from convention of 1891, which then influenced the Const that was given stat sanction by Imp Par
  • agrees with Dicey-fed is system where several sep org communities are embraced in one comprehensive community
  • for clark, central q of fed: how to unite a # of separate political entities into composite society in manner that preserves collective & corporate life of each State
  • solution is to define boundaries, create dual citizenship & give majority of component communities (states) & majority of composite community (fed) veto powers over leg & const amendments
  • thus to preserve states leads to division of power, system of separate representation (at state & fed levels) & const amendment that recognises constitutive status of peoples of component states

Richard Baker:

  • Manual of Reference, again specific for delegate, discussed
  • Mode of formation
  • Org of exec & leg
  • Allocation of powers
  • Ratification of Const & referendums
  • Thus similar to Madison, Just
  • Overriding objective: powers of self gov be increased, exercise of those powers to be delegated to Nat or Fed gov, & partly to State gov
  • Key principles: local self-gov, state independence, state equality
  • Rep of people in H. o Reps & equal rep of people as citizens in Senate of co-equal power→essence of federation
  • Avoided sov problem via fed & confed distinction: (fed) has direct central authority over individuals, not on basis of sov, located in nation or states
  • Favoured fed exec council→true fed is balance btw centralisation & decentralisation
  • Thus disagreed with draft const of 1891-exec resp to only house of reps was major defect
  • Critical of resp gov: tendency to disintegrate gov, weaken gov responsibility.
  • An exec chosen by both houses would avoid weaknesses of US sytem
  • Also favoured election of senate (as decided by state leg) to avoid gradual accumulation of fed power that could result in direct elections-but direct elections of senators by people of each state still consistent with federation
  • His extreme views on this point not successful, but still prevent nationalistic views from other delegates
  • Const eventually supported resp gov, but still compromised on powers of senate (s53 Const)

Samuel Griffith:

  • States self-gov for so long, that nearly sov
  • Implied practical instit restraint-colonies would seek to preserve const status they were used to
  • But also suggests that colonies entitled to self-gov, sovereignty & separateness
  • Would req local gov to relinquish some powers-thus federation dependent on public opinion in each colony
  • Fed & confed distinct:
  • confed > political assoc of states with central gov & lef but in which central authorities have no direct auth over the people, only through states
  • fed> political union of states which, for purposes & with limits, is complete so states form larger state with common Gov-direct upon citizens to matters w/I its juris—beyond which states retain autonomy
  • distinct —> whether people of states agreed to create a fed gov having direct exec power over indiv
  • no reason why not have sep rep in fed parliament & sep voice on const amendment
  • since origin lies in states-distribution of powers is not ‘division’ rather delegation/transfer of limited powers
  • central value was self-gov→only transfer those powers that fed gov may exercise to greater advantage
  • still doubtful of resp gov but equal rep was imperative

Essentials of fed:

  • sep states orig autonomous
  • agree to surrender only so much power as necessary
  • equally rep in sentate, with virtually equal power in Reps
  • for state legislatures to determine manner of const amendments

Quick & Garran

Diceyan's definition of federation: federation aims to reconcile national unity with state rights in order to bind a group of states into a nation w/o destroying their indiv as states

  • achieved by dividing functions of goc & attributes of sov between central nat gov and state local gov
  • essential characteristics of fed gov:
  • supremacy of fe const
  • distribution of powers by const
  • existence of judicial body to guard/interpret const
  • important underlying tension between principles of imperial sov and self-gov
  • process of formation fo aust const led toward compactualism whilst theoretical commitments drew more from nationalism—Dicey & Burgess had most influence on them
  • eg Enabling Acts passed by state parliaments enabled popular referenda (federal in nature) whilst tracing sovereignty back to the people –absolute authority (nationalist)
  • their approach to sov influenced their understanding of fed→merely dual system of gov under common sovereignty
  • will of people suggestive of nationalising tendency, but also as voters, a majority was req→the control over legislation driven by majority
  • this federation was a union of states as well as a union of people
  • all of the theoretical tension didn’t fit the facts, so they didn’t attempt to explain the formative process via nationalism at all
  • thus nationalism inadequate as explanatory theory—they also understood the rep structures were both nat & fed, derived from formative basis of Const & made other statements admitting the mixed nature
  • to solve this discrepancy they used the overarching sov of imperial Parliament –could overrule the guarantees of territorial & rep integrity of states in s128 (5th paragraph)


  • radical liberal democrat, thus initiated demo reforms at state & fed level
  • provisions for popular initiative & referendum to veto fed legislation
  • referendum as means of proposing const amendment
  • provision for direct election of state governors
  • supportive of self-gov, proposed
  • fed par consist of senate and national assembly
  • powers of Par to be specifically enumerated
  • senate = 6 senators from each state, chosen by state leg
  • implicit prov for system of par resp gov-stipulating exec power exercised by Queen, GG as her rep, advised by an Aus Privy Council, later to become members of fed par—this council must also have btw 6-12 members, at least 1 from each state
  • thus clearly supported resp gov, lots of popularist features
  • also pushed for delegates to const conventions be elected directly, not by state leg
  • shows awareness of formative process’ influence on the terms & structure of eventual const
  • ultimately supported thoroughly democratic and federal constitution

Isaac & Higgins

  • expressed exclusively liberal nationalistic interp of true federalism
    • in every political community, some sov body (sov: capacity to det nature & terms of const)
    • acknowledged theoretical sov of imp parliament, but practically, sov rested with people-and pop sov is majority rule
    • thus people prevail in rep instit & to amend Const
    • problem from consent of people in each colony
    • states to be equally rep, despite pop diff
    • const amended only by majority of voters in majority of states
    • equal rep in senate only changed by peoples’ vote from affected states
    • they believed it too provincial-too much state involvement for a system where the people are the sovereign entity
    • their essential principle of fed was division of power-not equal rep
    • argued for national-majoritarian means to amend const
    • so it eventually became a mixed composition-federal and national elements
  • Federalists (Clark) argued: state is separately organised community which has distinct collective & corporate life & distinct interests, requiring separate representation in Fed Par and in amendment process.
  • Madison’s analysis: at foundation of federal system is federating process whereby the people agree to unite their independent states to create federal commonwealth
  • Compactualist origin: premised on capacity of representative of states to negotiate and agree on terms of federal union

Chapter 9: The States & the Commonwealth

Statements of fundamental principle:

Convention of 1891

  • Federation premised upon: states existed as self-gov, independent bodies politic
  • Apart from specifc transfers of power for necessary & indicidental est of fed gov , all would remain with states (nec & incidental to be agreed by states)
  • This merged into discussion on composition and powers of the Senate, given that equal representation of original states in Senate was virtually uncontested
  • 2 conceptions of fed then emerged:
  1. (minority) equal rep unnecessary because fed has limited power, to definite subjects, states retain almost all
  2. recognised difficulty of defining the boundary of powers exactly, juris largely concurrent btw fed & states, could not rely on enforcement by judges-needs additional protection in senate where each is represented equally
  • definite consensus of conferring limited powers and ‘all’ remaining go to states-because to define is to limit (as opposed to Canada where general powers go to central gov, specific powers to regional)
  • founders divided whether to address questions of good gov at state level constitutions or to leave alone (coming from a proposal that people should be able to adopt their state Const by majority vote)
    • some said outside delegates task/competence
    • others recognised need for democratic tendencies, esp as those state const relevant in forming state leg and thus nature of federalism
    • decided on middle course-states couldn’t entirely change their nature-agreement of fundamental characteristics

Convention of 1897-1898

  • some elements remained same:
  • federation from agreement among people of states, negotiatied and drafted by elected reps
  • powers of states intact, except for specific transfers to secure uniformity of law & admin, in matters of common concern
  • after est of fed gov, no alteration to territory of state w/o their consent
  • only difference, made explicit what was implicit:
  • intro words by Barton (inspired by Bernhard wise): emphatically state guiding purpose of fed was to ‘enlarge the powers of self-gov of the people of Aus’
  • this to clarify that although powers transferred, this was to give people capacity to self govern on national scale (before relied on piecemeal negotiaion btw govs or imp intervention)
  • this objective in mind, resoltions laid down conditions of foundation upon which fed gov would exercise auth
  • powers still only those agreed to be transferred, the rest absolutely preserved
  • thus fully retained principle that fed based on free agreement of colonies
  • discussion more nuanced—on which principles would the powers be chosen to be transferred?
  • Suggestions: (bold= supported/general consensus)
  • States keep all they can handle, give only those necessary
  • States retain local matters, national/inter-state importance goes to fed
  • Only those that can be exercised more wisely/expediently by fed gov
  • States keep those they can carry out better themselves, fed gets those of common/general concern which united gov can manage better for good of people
  • Suff power to enable fed to be strong, stable-able to confront outside world, reserving state powers to local affairs
  • Also expected to be largely concurrent, & where inconsis, fed would prevail
  • Cth Bill 1891: explicit list of federal powers
  • Also foresaw fed supreme court which would arbitrate disputes over powers of fed & states, as well as general appeals

Continuing states

  • Central-states would continue as autonomous, thus s7 Senate chosen by people, only original states given equal rep, and minimum of rep in H.
    • Reps under s24
  • Thus states not established under Const→the Const refers to them as continuing (changed from ‘reserved’-debate if this is weaker/stronger)
  • This continuing had imp implications for existing state const & admission of new states, as well as config & allocation of powers
  • What the Const does not say is as important as what it does

State Constitutions

  • S106-108 Const affirms that each state const would, subject to fed const, continue until altered in accordance w state const. leg power also continue, & laws of each colony would continue in force until altered
  • Apart from 2 clauses, 1891 convention kept interference w states minimal
  • How state governors chosen (couldn’t agree, omitted altogether)
  • Governors of states could not communicate w Queen directly, only through GG (again, omitted)

[Ultimately only provision involving state governors is declaratory-s106]

  • Important that at this stage, convention was premised on semi-constitutive authority of state parliaments, provisions left constitutions to their arrangement→shows movement away from reliance on imp parliament to amend constitutions (both state and commonwealth)

New States

  • ‘continuing’ of s106-108 applies to existing and new states w/o discrim
  • [s7 and s24 discrim on rep]
  • Why?
  • Hope for embryo states-surrendered territory, union of 2 states, external state admitted
  • But consent still basic principle
  • 2 issues of scrutiny in 1891, 1897-8 conventions
  • consent of state par before subdivision of state
  • the distinction between existing & new states shows constitutive element in federation (again ‘compactual’ conception)
  • no real consensus on this, decided that control remained with state & Cth Parliaments
  • kind of rep appropriate for new states
  • while equality eventually regarded as essential to fed, others thought it a compromise, some thought it a principle & right→this came out in discussing rep for any new states
  • in terms of fed formation: orig states got equal rep as condition of entry as pre-existing, self gov colonies
  • decision (of unequal rep) shows that the principle applies only to orig states→thus federation rests upon agreement of constituent states, the terms of fed are matters for debate and negotiation-not simply abstract & idealistic philosophy

Ch 10: Configurations of Power

Distributing competencies

Convention 1891

• important not to transfer any power which could be better exercised by the states, or the exercise of which was not necessary to the federation for its good order and gov
• most obvious: trade, commerce, tax, defence
• most concurrent, except for exclusive list, fed prevails over state where inconsis
• would not specify powers of states (define is to limit)
• intent was to create genuinely fed gov with instit & powers necessary to function as sov nation w/I its authority
• language used so Cth power could be read broadly-although always within sphere of that power→still principle that it would be within enumerated & limited powers
• so not a glorified body-actually the central gov of Australia in more than name
• consistent intention throughout drafting: exec & leg powers be limited to particular topics, & the limited transfer implied a prohibition on the Cth, and a reservation to States
Convention 1897-8
• longer list of fed powers, relationship same
• concern often expresse was that if too many responsibilities were conferred on fed, this would undermine capacity of people in each state to self-gov
• the language of provisions (explicit provision, qualified terms, limited positive words) has influence HC interpretations on scope of power hugely
• this convention more about careful drafting etc

Configurations of Power

• dicey’s model reproduced to some extent
o division of powers
o binding const in which these powers were written down
o independent judiciary
o diverges:
• fed formed through free agreement-impacted rep instit & amending formula
• not coordinate federalism-concurrent leg powers for cth and states, and reservation of all powers not conferred
• way HC constituted and exercise of its powers

Concurrency, exclusivity & fed supremacy

• s51, vast majority concurrent
• s109 inconsis, fed prevails
• framers understood reference power to be signif way in which allocation of powers could be adjusted w/o formal const amendment
• concurrent power would not stop experimentation w/I states etc and was necessary to resolve disputes

• some powers intended to be exclusive, 2 reasons
o some subject matters hadn’t fallen in orig juris of colonies (so giving power that they hadn’t had made no alter to pre-exising affairs)
o others transferred explicitly & delib exclus
• race power & general questions about when state law will apply (esp if Cth hasn’t yet legis) often confused since considered in race power controversy
• these q not relevant since Cth legislated to clarify status of state laws in respect of areas of exclusive Cth power
• the discussion merely highlights that delegates understood relationship btw leg powers of Cth & states was significant-particularly exclusivity & supremacy of Cth

• general effect of exclusivity depended on provisions dealing with continuing powers of states (not simply on terms in which power was vested to Cth)

• basic principle: powers of states continue subject to exclusive powers vested in Cth or otherwise withdrawn from states

• doubts about exclusvitiy & effect of s108 were compounded by way race power turned upon Cth deeming it necessary to leg for particular race
• these doubts + concern to preserve state powers = race power found concurrent
• cleared up operation of race power, didn’t help s108
• state law operate until Cth actually legislated, s108 drafted to leave open the argument that states might retain capacity to amend/repeal own laws till Cth imposed
• s108→concerned w saving state law & state power to legislate in fields exclusively vested in cth
• thus displacement of state law by Cth law is regulated by both s109 & s108

High Court of Australia

• general observations to indicate how framers understood role of court
o resolve jurisdictional & other disputes btw Cth & states
o constitutional validity of Cth & state law –specially provided for Fed Court to have const jurisdiction s76
o judicial review –seen via est HC directly (s71), providing security-tenure etc (s72)
o still concerns over its power-proposed:
• to make composition mixed (representative of Cth & States)-since drawing the line btw the two, it could be vulnerable to partiality. Rebutted since court wasn’t to protect interests but merely to decide law according to what is just
• to make its decisions amenable to popular referendum-lots of reasons against, including the power to undermine the HC as federal arbiter →if decisions could be reversed, their authority would be considerably weakened—thus amendment withdrawn

• Ultimately, founders recognised independence as means to keep Cth & states w/I their power spheres