The Frontiers of Australian Federalism

Abstract

The frontiers of Australian federalism are potentially as numerous as the many ways in which federalism infuses Australian law and politics. There are frontiers about how we understand the very foundations of the federation, about what makes the federal constitution legally binding, and about how it can be altered in the future. There are frontiers in the practical working of our bicameral system of parliamentary representation – especially the Senate – and ongoing questions about its reform. There are also frontiers in the use by the Commonwealth of its legislative, executive and financial powers – a longstanding issue that has seen the scope and volume of federal legislation and administration grow in virtually every decade since federation. And there are frontiers in the relations between the federal, state and territory governments – a murky landscape, in which not all that happens is open to public view or democratic accountability. In each of these respects the Australian federal system displays a kind of path dependency. Patterns of behavior and institutional decisions settled in the past have had a tendency to lock-in particular institutional pathways in Australian federalism that cannot easily be overcome. This paper, which was presented at the 2018 Public Law Conference held at Melbourne Law School, analyses some of the ways in which Australian federalism is path dependent and discusses the prospects of its reform. It is concluded that without an understanding of the path dependent nature of the system our attempts to reform it are unlikely to be successful and could easily prove to be counter-productive.