LAWS1116 Lecture 2

Federation Part 2

General Notes

  • Only Monday lecture next week (E-109 in Building 1, 4-6pm)
  • The Australian Constitution is different to the British Constitutions Act 1900 – it contained 9 sections, the 9th of which was our Constitution

Colonies before Federation

  • States all existed as colonies before Federation
  • Highly independent, pre-supposed by the constitution
  • This pre-supposition led to an ‘integrative federation’, where the colonial governments and structure continued to exist, converted to ‘state’ governments

Desire for representative/responsible government

  • Initially led to colonial parliaments (desire for elected representation that the governor would be accountable to)
  • Led to local governors (From that colony, rather than England)
  • Led to remote towns seeking to become independent colonies (Queensland, Victoria)
  • As a result of this decades long struggle for self government, the colonies were very guarded with their sovereignty, and would only consider federation if state powers were preserved – Federation was only considered in an ‘American’ sense (with strong independent states)

Objectives of Federation

  • Common Defence (fear of France, Germany, etc. wanting to seize part of Australia)
  • Economic Union (led to the abolition of protectionist trade policies between states – all of Australia was converted into a single free trade zone)
  • Nationalism – ‘this crimson thread of kinship runs through us all’ – colonial pre-Australians had closer bonds with their geographic neighbours than with England
  • Desire for local self-government (Greater level of control over the nations fate than they had over the individual colonies)

The Federal Pact

  • Required the consent and input of many parties
  1. British Parliament – a federation ‘under the crown’, the constitution itself being part of a British Act
  2. Colonial Governments and Legislature (Desire to retain autonomy, belief in local self-government, and the need for all colonial legislatures to agree on the structure of the constitution)
  3. Peoples of the Colonies/States (final consent in the form of individual colonial referendums – required majority support of all states)
  4. People of the Nation (unanimous majority consent from all founding states equated to the majority consent of the nation)

The Constitutional Process (1890s)

  • Legislatures of each colony initially enacted “Enabling Acts”
  • These supported conferences on Federation, which led to the 1891 Convention
  • This led to an initial Draft Constitution, which was not accepted, and the idea of federation was left to simmer until 1895
  • Eventually support grew again, and further enabling Acts were passed allowing a second convention in 1897-1898
  • Every state except Queensland was represented here, because Northern and Central Queensland were debating becoming colonies and/or states of their own at the time
  • This second convention led to an agreement on a number of broad resolutions, then broke up into several separate committees, who came to agreement and passed their ideas to the drafting committee where a second draft constitution was created
  • The draft was sent to all colonial legislatures for oversight/debate/approval
  • Legislatures returned their own proposed amendments to the convention for further debate
  • The revised constitution was then subject to a referendum in each colony
  • Eventually each colony agreed (Initially failed to pass in NSW, was only passed by WA at the last minute)
  • Presented to colonial office in the UK, enacted by British Parliament almost as it was written (minor adjustments to the Privy Council Appeal process)
  • Enacted in 1900, took effect 01/01/1901

Decision Making Rules

  • Varied between Unanimity and Majority
  • Required unanimous agreement of all states to join
  • Most bodies created by the constitution only required majority (or occasionally a special majority) for assent
  • The amendment process required two senses of majority

Representative Principle

  • Federal Democracy (Representation organised by political communities on both state and national levels)
  • Section 106 specified the continuance of colonial legislatures as state legislatures
  • The states pre-dated federation – they were not created by it, simply re-named
  • Section 7 (Senate) and 24 (House of Representatives) were a balance of state representation (each state equal in senate) and national representation (House based on population) with the senate required for the passage of money bills
  • A citizen of any state was also a citizen of Australia
  • Influenced by the British idea of democracy (Westminster system/Responsible Government) as much as the US and Swiss ideas
  • Upper House (Senate/House of Lords) for oversight
  • British Upper House was hereditary, so democratic ideals led to a gradual reduction in its power
  • Responsible government – exercise of democratic ideals where the royal executive power was exercised only at the request of parliament (this was done by convention, not law)
  • To be truly democratic, the Prime Minister in Britain must come from the popularly elected lower house – Australia copied this
  • Drafters were unsure of powers and electoral process for the two houses – should the senate be directly elected? Should they have the power to create or vote on appropriations bills?
  • Compromise – could block appropriations (money) bills, but not create them
  • This wasn’t exercised until 1975’s double dissolution (Whitlam)
  • Rudd’s deposition – parliamentary process allowed for a ‘no confidence’ vote that would have removed him, so he chose to stand down instead
  • Australian’s vote for their local members, who then lend their support to a Prime Minister – removal of Prime Minister is not un-democratic, as democratically elected members merely shift their support
  • PM controls legislative (House of Representatives, as long as he has their support) and indirectly controls executive – but may not control the senate (see Whitlam) – unicameral Queensland system seems the Premier of Queensland controlling both the legislative and executive

Economic Union

  • Commonwealth has exclusive control of customs and exports
  • The states and Commonwealth have equal control of all other taxation (sections 106 and 51) – but as the Commonwealth has effectively seized control of GST, Income, and Company tax they control the majority of Australian money
  • “Vertical fiscal imbalance” – Commonwealth controls more of the money than they spend, States spend more than they control – would require either abolishing the states and vesting their powers to the Commonwealth, or letting them control their own taxation directly once more to fix
  • Free trade (between states) is cemented as ‘absolutely free’ by section 92

Legislative Power

  • As specified by Federal Constitution, Australia Act, and each states Constitution
  • States possess general legislative power (bar those enumerated in sections 51 and 52 as exclusively Commonwealth)
  • Commonwealth (officially) only has those enumerated powers
  • Section 109 – in areas where the two overlap, Commonwealth trumps State to the degree of the inconsistency
  • Not really a ‘division of powers’ – more a ‘transfer of specific powers from states to the Commonwealth’ – as state powers continued and retained all non-enumerated powers

Creation/Amendment

  • Created by unanimous state agreement, exhibited by majority referenda within each state
  • Amended by dual majority referenda (NOT required to be unanimous)
  • Process recognises both compactual and federal nature of the constitution
  • Retained unanimity level of control over state representation – state boundaries and representation changes require the agreement of the affected state
  • Amending the actual British Constitution Act would require British Parliament, who can no longer do so since the Australia Act, or the Commonwealth to utilise section 51 (38), which would require unanimous state agreement
  • Federal Idea (as per Quick and Garran) – “federal idea pervades and dominates the structure of the constitution”

Role of the Courts

  • Concurrent or overlapping state and commonwealth powers can lead to conflict
  • In cases of conflict, ask:
  1. Is the law constitutional for the Commonwealth to pass? Is it covered under the enumerated powers of sections 51 and 52?
  2. Are the two laws truly inconsistent? (large body of case law on this point)
  3. Does the law bind the government? Various Commonwealth and State issues have been resolved by the High Court interpreting immunities preventing laws made by one from binding the other
  • Ultimately falls down to two basic enquiries:
  1. Power (do they have the power to pass it)
  2. Prohibition (I sit contrary to immunities or limitations?)
  • Example: does “military and naval defence of the commonwealth” include aircraft, which the founders could not have possibly imagined at the time when they wrote the constitution