Una società di società : Why Australia is a Federation

Abstract

Although the Australian federation came into being in 1901 under the authority of the British Imperial Parliament in London, the decision to federate, and the terms and conditions upon which it occurred, were all negotiated and agreed to by elected representatives of the several constituent states. The constituent states of the federation had secured independent powers of local self-government and constitutional self-determination in the 1850s, and when considering the possibility of forming a federation, they were not willing to give up those powers to a consolidated central government. In this respect, they looked to the examples of other historic federations, such as Switzerland and the United States, as models of government in which the constituent states agreed to form a federal level of government for certain 'national' purposes, while retaining a fundamental capacity to govern themselves independently in all other respects. The design of the Australian Constitution reflected this fundamental principle, particularly in the specifically limited competences conferred upon the federal institutions of government, the reservation of all other powers to the states, the representation of the states as equals within one of the houses of the federal parliament, and the requirement that any additional changes to the federal compact would have to be agreed to by a majority of people in a majority of states. Since the formation of the Australian federation, the High Court of Australia has not consistently interpreted the Constitution in a manner that gives effect to the intentions of its framers. Although the Constitution was designed to maintain a kind of balance between the federal and state levels of government, the general trend in Australia has been to towards increasing centralisation. There are several strategies that might be adopted to attempt to reverse this trend. One of the most radical would involve the state governments initiating a process whereby the state constitutions would be submitted to their respective peoples for ratification and approval by referendum. Such an initiative has the potential to reinvigorate the role and constitutional standing of the states within the federation. This is because, at present, only the federal constitution has been popularly ratified, and the democratic foundations of the federation have been one of the underlying reasons why the High Court has given interpretive priority to the powers of the federation in preference to those of the states. While the practical implications of such a change cannot be predicted with absolute certainty, if the state constitutions were ratified by their respective peoples, it would give the Court reason to consider the states as locations of constitutional, democratic self-governance at least as fundamental to the federation as the government of the federation as a whole, just as the framers had originally intended, and to interpret the federal Constitution in that light.